Item
1. Business
Background
and Overview
PAVmed
is a highly-differentiated multi-product technology medical device company organized to advance a broad pipeline of innovative
medical technologies from concept to commercialization, employing a business model focused on capital efficiency and speed to
market. Since inception on June 26, 2014, the Company’s activities have focused on advancing its lead products towards regulatory
approval and commercialization, protecting its intellectual property, and building its corporate infrastructure and management
team. The Company operates in one segment as a medical device company with four operating divisions which include GI Health, Minimally
Invasive Interventions, Infusion Therapy, and Emerging Innovations. As resources permit, we will continue to explore internal
and external innovations that fulfill our project selection criteria without limiting ourselves to any target specialty or condition.
The Company has ongoing operations conducted in two active majority owned subsidiaries: Lucid Diagnostics, Inc. (“Lucid
Diagnostics” or “Lucid”) incorporated in May 2018 and Solys Diagnostics, Inc. (“Solys Diagnostics”
or “Solys”) incorporated in October 2019.
PAVmed
and its subsidiaries have proprietary rights to the trademarks used herein, including, among others, PAVmed™, Lucid Diagnostics™,
Caldus™, CarpX™, DisappEAR™, EsoCheck™, EsoGuard™, EsoCheck Cell Collection Device™ EsoCure
Esophageal Ablation Device™ , NextCath™, NextFlo™, PortIO™, and “Innovating at the Speed of Life”
™. Solely as a matter of convenience, trademarks and trade names referred to herein may or may not be accompanied with the
requisite marks of “™” or “®”, however, the absence of such marks is not intended to indicate,
in any way, PAVmed or its subsidiaries will not assert, to the fullest extent possible under applicable law, their respective
rights to such trademarks and trade names.
Our
multiple products are in various phases of development and regulatory clearances or approvals. EsoCheck has received 510(k) marketing
clearance from the U.S. Food and Drug Administration (“FDA”) as a generic esophageal cell collection device. EsoGuard
has been established as a Laboratory Developed Test (“LDT”) and was launched commercially in December 2019 after Clinical
Laboratory Improvement Amendment (“CLIA”) and College of American Pathologists (“CAP”) accreditation
of the test at Lucid’s commercial diagnostic laboratory partner ResearchDx Inc. (“ResearchDx”), headquartered
in Irvine, CA. Our other products in development have not yet received clearance or approval to be marketed or sold in the U.S.
or elsewhere. We have been granted patents by the U.S. Patent and Trademark Office (“USPTO”) for CarpX, PortIO, and
Caldus and have acquired licenses to certain patents and intellectual property for DisappEAR from Tufts University and a group
of academic centers, for EsoGuard and EsoCheck from Case Western Reserve University (“CWRU”) and more recently for
patents covering infrared technology to non-invasively detect glucose in tissue within the in-patient field of use from Liquid
Sensing, Inc.
Our
four operating divisions include:
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GI
Health (EsoGuard Esophageal DNA Test, EsoCheck Esophageal Cell Collection Device, and EsoCure Esophageal Ablation Device with
Caldus Technology);
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Minimally
Invasive Interventions (CarpX Minimally Invasive Device for Carpal Tunnel Syndrome);
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Infusion
Therapy (PortIO Implantable Intraosseous Vascular Access Device and NextFlo Highly Accurate Disposable Intravenous Infusion
Set); and
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Emerging
Innovations (non-invasive laser-based glucose monitoring, NextCath™ self-anchoring catheters, pediatric ear tubes and
mechanical circulatory support).
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A
brief description of our key divisions and products is as follows:
GI
Health
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EsoGuard,
EsoCheck, and EsoCure –
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refers
to a patented platform technology (EsoGuard and EsoCheck) licensed from CWRU to Lucid Diagnostics developed to provide an
accurate, non-invasive, patient-friendly screening test for the early detection of adenocarcinoma of the esophagus (“EAC”)
and of Barrett’s Esophagus (“BE”), including dysplasia, pre-cursors to EAC in patients with chronic heart
burn or acid reflux, along with a technology (EsoCure) developed by PAVmed to treat BE. EsoGuard is a molecular diagnostic
esophageal DNA test shown in a published human study to be highly accurate at detecting BE, as well as EAC. EsoCheck is a
non-invasive cell collection device designed to sample cells from a targeted region of the esophagus in a five-minute office-based
procedure, without the need for endoscopy. Both EsoGuard and EsoCheck are commercially available, as separately marketed products,
for physicians to prescribe for U.S. patients. EsoCure is in development to provide an Esophageal Ablation Device using Caldus
Technology to allow a clinician to treat dysplastic BE before it can progress to EAC, a highly lethal esophageal cancer, and
to do so without the need for complex and expensive capital equipment.
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Item
1. Business - Continued
Background
and Overview - continued
Minimally
Invasive Interventions
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CarpX
–
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refers
to a patented, single-use disposable, minimally invasive device designed to treat carpal tunnel syndrome while reducing recovery
times. CarpX is a medical precision cutting device allowing a physician to relieve the compression on the median nerve without
an open incision or the need for endoscopic or other imaging equipment. CarpX was resubmitted to the FDA for 510(k) premarket
notification in March 2020 after successfully completing a human clinical safety study.
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Infusion
Therapy
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PortIO
–
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refers
to a novel, patented, implantable, intraosseous vascular medical device which does not require accessing the central venous
system and does not have an indwelling intravascular component. It is designed to be highly resistant to occlusion and may
not require regular flushing. It features simplified, near-percutaneous insertion and removal, without the need for surgical
dissection or radiographic confirmation. It provides a near limitless number of potential access sites and can be used in
patients with chronic total occlusion of their central veins. The absence of an intravascular component will likely result
in a very low infection rate.
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NextFlo
–
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refers
to a patented, disposable, IV infusion set designed to eliminate the need for complex and expensive electronic infusion pumps
for most of the estimated one million infusions of fluids, medications and other substances delivered each day in hospitals
and outpatient settings in the United States. NextFlo is designed to deliver highly accurate gravity-driven infusions independent
of the height of the IV bag. It maintains constant flow by incorporating a proprietary, passive, pressure-dependent variable
flow-resistor consisting entirely of inexpensive, easy-to-manufacture disposable mechanical parts. NextFlo testing has demonstrated
constant flow rates across a wide range of IV bag heights, with accuracy rates comparable to electronic infusion pumps.
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Emerging
Innovations
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refers
to a diversified and expanding portfolio of innovative products designed to address unmet clinical needs across a broad range
of clinical conditions. We are evaluating a number of these product opportunities and intellectual property covering a spectrum
of clinical conditions, which have either been developed internally or have been presented to us by clinician innovators and
academic medical centers, for consideration of a partnership to develop and commercialize these products. This collection
of products includes, without limitation, initiatives in noninvasive glucose monitoring, mechanical circulatory support, self-anchoring
catheters, and pediatric ear tubes. Furthermore, we are exploring other opportunities to grow our business and enhance shareholder
value through the acquisition of pre-commercial or commercial stage products and/or companies with potential strategic corporate
and commercial synergies.
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Item
1. Business - Continued
Background
and Overview - continued
GI
Health (Gastroenterology – EsoGuard, EsoCheck, and EsoCure)
In
May 2018, Lucid Diagnostics, a majority-owned subsidiary of PAVmed, entered into a patent license agreement with CWRU (the “CWRU
License Agreement”), for the exclusive worldwide license of the intellectual property rights for two distinct proprietary
technologies focused on the early detection and prevention of EAC, a highly lethal form of esophageal cancer.
The
two patent-protected technologies licensed from CWRU are EsoGuard and EsoCheck:
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EsoGuard
is a molecular diagnostic esophageal DNA test shown in a published human study to be highly accurate at detecting BE, as well
as EAC. BE is a condition in which there are changes in the type of cells lining the esophagus, and which can occur with or
without dysplasia (abnormal change in cells that occurs prior to cells becoming cancerous). Most individuals with BE are unaware
that they have BE and thus are unaware of their risk of developing EAC, as well as available treatment options which are highly
effective at preventing progression of disease. The estimated immediately addressable domestic market opportunity for EsoGuard
is nearly $2 billion based on tens of millions of U.S. patients with gastroesophageal reflux disease (“GERD”),
more commonly called acid reflux or chronic heartburn, who are BE screening candidates according to published American College
of Gastroenterology (“ACG”) guidelines.
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EsoCheck
is a non-invasive cell collection device designed to sample cells from a targeted region of the esophagus in a five-minute
office-based procedure, without the need for endoscopy. It consists of an easy to swallow capsule the size of a gelcap, containing
a proprietary textured balloon used to collect a mucosal cell sample when inflated. When the balloon is deflated after cell
collection, the proprietary and patent-protected Collect+Protect Technology retracts the balloon with its collected cells
back into the capsule, where they are protected during the retrieval process. These sampled cells may then be subjected
to any commercially available diagnostic test, including EsoGuard.
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Additionally,
PAVmed has recently added the EsoCure Esophageal Ablation Device with Caldus Technology to its commercial product development
pipeline. EsoCure is a disposable single-use thermal balloon ablation catheter designed to advance through the working channel
of a standard endoscope and allow the clinician to treat dysplastic BE before it can progress to highly lethal EAC and to do so
without the need for complex and expensive capital equipment. It complements Lucid Diagnostics’ portfolio of EsoGuard and
EsoCheck products, which are designed to detect nondysplastic and dysplastic BE, as well as EAC itself. EsoCure incorporates PAVmed’s
patented Caldus Technology (“Caldus”) which allows direct thermal tissue ablation using disposable single-use ablation
devices. Once PAVmed completes its product development process including obtaining market clearance from the FDA, we intend to
add EsoCure to our product offering being presented to the GI physician community by Lucid’s contract sales force.
Hence,
our first commercial products consist of the EsoCheck device for collecting esophageal cells and the EsoGuard DNA assay for testing
cells for the presence of BE and EAC, with both products now commercially available to be prescribed by physicians for U.S. patients.
Currently, each product is permitted to be distributed as a separate and distinct product offering. However, we are planning a
human clinical trial, expected to be approximately 31 months in duration, in support of an FDA premarket approval (“PMA”)
application for the marketing of EsoCheck and EsoGuard in combination as a screening tool for the detection of BE. We also plan
to develop and commercialize other products that use or enhance the same underlying technology or address the same disease states
of the esophagus. We are also currently exploring commercial partnerships for the launch of EsoGuard outside the United States.
We
believe the development and commercial availability of our EsoGuard diagnostic test is revolutionary, particularly when performed
on samples collected by EsoCheck. Our molecular DNA assay has the potential to save many lives through early BE detection. We
were affirmed in this belief in February 2020 when we received Breakthrough Device designation from the FDA for our EsoGuard Esophageal
DNA Test on esophageal samples collected using its EsoCheck Cell Collection Device in a prevalent well-defined group of patients
at elevated risk for esophageal dysplasia due to chronic GERD. The FDA Breakthrough Device Program was created to offer patients
more timely access to breakthrough technologies which provide for more effective treatment or diagnosis of life-threatening or
irreversibly debilitating human disease or conditions by expediting their development, assessment and review through enhanced
communications and more efficient and flexible clinical study design, including more favorable pre/post market data collection
balance. Breakthrough Devices receive priority FDA review, and a bipartisan bill before Congress (H.R. 5333) seeks to require
Medicare to temporarily cover all Breakthrough Devices for three years while determining permanent coverage. Additionally, the
National Cancer Institute (“NCI”) highlighted EsoGuard and EsoCheck as one of a handful of the year’s
significant advances in cancer prevention in the NCI’s 2020 Annual Plan and Budget Proposal submitted to Congress.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure
Furthermore,
we believe EsoGuard and EsoCheck (and later EsoCure, if and when it receives FDA 510(k) clearance) will revolutionize the frequency
and manner that GI physicians interact with patients suffering from chronic acid reflux and other diseases of the esophagus for
the following reasons:
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EsoGuard
is the first and only DNA test designed to facilitate the diagnosis of BE and related precursors to highly lethal EAC. EsoGuard
has been shown in a 408-patient human study published in Science Translational Medicine to be highly accurate at detecting
BE, with and without dysplasia, as well as EAC, with greater than 90% sensitivity and specificity.
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EsoCheck
is the only esophageal cell collection device capable of performing targeted sampling of esophageal cells in a minimally invasive
way while also preventing the dilution and contamination of the cell samples as the catheter is withdrawn, thus allowing for
the DNA test to pick up the low level signal of pre-cancerous changes against the background noise of other changes in non-targeted
anatomic areas.
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The
American College of Gastroenterology’s guidelines recommend screening in millions of high-risk patients to detect and
treat BE, with or without dysplasia, before it progresses to EAC. However, fewer than 10% actually undergo screening
using the traditional invasive approach, upper endoscopy. Tragically, most patients diagnosed with EAC are neither aware of
their underlying BE, nor that they missed the opportunity to undergo treatment which could have prevented progression to EAC
had the BE been diagnosed earlier. As a result, over 80% die within five years of diagnosis. A modest increase in screening
rates from 10-25% of high-risk GERD patients would prevent several thousand deaths per year from EAC. The use of EsoGuard
on samples collected with EsoCheck has the potential to reverse this tragic situation and we believe could have as great an
impact on esophageal cancer as widespread Pap screening has had in preventing deaths from cervical cancer.
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Our
EsoGuard Opportunity
The
incidence of EAC, the most common cancer of the esophagus, has quadrupled over the past 30 years. Its prognosis remains dismal,
with fewer than 20% of patients surviving at five years. We are pursuing the development of the EsoGuard technology to provide
the more than 30 million diagnosed GERD patients a non-invasive, less costly test by which to detect BE so that patients identified
with the condition may receive surveillance and medical therapies well known to be highly effective at preventing progression
to esophageal cancer.
The
primary risk factor for, and a presumed cause of BE is GERD, commonly known as chronic heartburn or acid reflux, wherein stomach
acid refluxes into the esophagus. GERD affects 20-40% of Western adult populations, according to published epidemiological data.
The repeated exposure to stomach acid can lead to specific metaplastic and dysplastic, i.e. pre-cancerous changes in the
esophageal lining, a condition known as Barrett’s Esophagus (which we refer to as BE).
BE
is most diagnosed in the U.S. by the presence of so-called “salmon colored” mucosa visualized during upper endoscopy
together with columnar epithelium (so-called intestinal metaplasia) seen on in biopsies taken from such an affected area. In BE,
columnar epithelium replaces the stratified squamous epithelium which normally lines the distal esophagus (at the nexus of the
stomach). This metaplastic epithelium is the initial manifestation of a progressive disease process, which, if unabated, continues
through a dysplastic phase and ultimately into EAC. Due to the known risk for progression of BE toward EAC, current guidelines
advise patients with nondysplastic BE to be enrolled in endoscopic surveillance programs in order to detect progression. Endoscopic
surveillance includes extensive biopsy sampling, taken per the Seattle biopsy protocol. For nondysplastic BE, the American College
of Gastroenterology recommends surveillance endoscopy at 3-5 year intervals. For patients with confirmed low grade dysplasia (“LGD”)
and without life-limiting comorbidity, endoscopic therapy is considered as the preferred treatment modality, although endoscopic
surveillance every 12 months is an acceptable alternative. Patients with high grade dysplasia (“HGD”) are to be managed
with endoscopic therapy.
The
only currently-validated approach to assess a patient for BE and EAC, and the current “gold standard”, is white light
esophagogastroduodenoscopy (“EGD,” also commonly known as “upper endoscopy”), together with collection
of multiple biopsy specimens from the potentially affected area in the distal esophagus. The procedure is invasive and expensive.
In the U.S., EGD is almost always done under intravenous sedation in a specialized facility. It requires a patient to be fasting
for several hours beforehand, to take a day off from work, and to be accompanied by a caregiver who also must miss work as a result.
Multiple biopsies must be taken, and each must be read by a highly trained and specialized medical pathologist. Interpretation
of these biopsies is highly subjective; for BE with LGD, pathological interpretation comes with an unacceptably low concordance
rate between pathologists. The EGD procedure itself, the administration of anesthesia, and the procurement of biopsies, all carry
medical risk. No screening alternative exists currently, and no device currently carries an FDA label indication to screen for
any of these conditions. It is our belief that EsoGuard may become the widespread screening test to fulfill this unmet patient
need similar to how pap smears and HPV testing have now become the widespread screening test to help eradicate cervical cancer.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure - continued
Our
EsoGuard Opportunity - continued
However,
despite the well-accepted understanding that BE may progress to dysplasia and EAC, the clear guidance on the importance of BE
surveillance and treatment, and the broad availability of EGD throughout the U.S., most cases of BE remain undiagnosed. Multiple
studies demonstrate that more than 90% of patients who develop EAC never knew they had BE prior to their EAC diagnosis. A major
opportunity for prevention of this cancer is being missed due to inadequate screening of at-risk populations. The major GI societies
clearly define populations at high risk and advocate screening of such individuals, yet the vast majority go unscreened. It is
estimated that more than 90% of high risk individuals for whom screening is currently indicated do not have it done. Put simply,
nearly all EAC patients have evidence of BE but fewer than one in ten will have had the condition detected prior to their cancer
diagnosis.
Dysplasia
can be treated with ablation, but most patients are diagnosed with EAC at an advanced stage. EsoCheck and EsoGuard are designed
to enhance screening and help clinicians catch BE and dysplasia while it’s still early enough to be treated and eliminated.
Enhancing screening, in this case, means providing better sampling of the esophagus as well as a highly accurate test to determine
whether precursor conditions have occurred.
Nearly
all patients diagnosed with EAC have evidence of BE, and it is accepted that BE is a precursor condition on a spectrum of progression
that in certain individuals will culminate in EAC, but in the vast majority of those with EAC, no prior diagnosis of BE will have
been made. If detected before the EAC esophagus cancer develops, Barrett’s Esophagus can be successfully treated, usually
with non-surgical approaches. Heartburn symptoms, commonly seen in patients with acid reflux with or without BE, can easily be
treated with over-the counter medications, while a diagnosis of BE with LGD or HGD offers options for endoscopic management including
radiofrequency ablation and local resection; these technologies have made LGD and HGD highly treatable with success rates of such
therapies at greater than 90%.
Our
EsoGuard and EsoCheck Solution
EsoCheck
collects cells from the esophagus without the need for endoscopy in a non-invasive five-minute office-based procedure. Its proprietary
and patent-protected Collect+Protect Technology protects collected samples from being diluted or contaminated during retrieval
within an easy to swallow capsule the size of a gelcap. The capsule contains a proprietary textured balloon that when inflated
inside the esophagus exposes ridges that have been shown to collect a greater amount of cellular material than predicate devices.
We
have completed a survival porcine study that included side-by-side comparison testing between the EsoCheck Cell Collection Device
and the Hobbs Medical Cytology Brush, a reference device included in our 510(k) submission to the FDA. The study was conducted
under Good Laboratory Practices (“GLP”) per the FDA’s regulation 21 CFR Part 58.5 and the results submitted
to the FDA as part of the EsoCheck 510(k) marketing application. One of the objectives of the study was to evaluate the performance
of the EsoCheck Device and the Hobbs Medical Cytology Brush when used as indicated for cell collection in the esophagus in a clinically
representative model. Specific evaluation included assessment of the adequacy of the sample of collected cells.
The
study was performed utilizing four animals with two separate anatomic areas in each animal’s esophagus sampled with the
EsoCheck device, and two separate anatomic areas in each animal’s esophagus sampled with the Hobbs Medical cytology brush
to ensure that each cell sample was taken from a previously undisturbed area of the esophagus.
After
collection of the esophageal cell samples, each cell collection device was placed in vials containing standard preservative solution.
The vials were then delivered to a Clinical Laboratory Improvement Amendments (“CLIA”) and College of American Pathologists
(“CAP”) certified laboratory for assessment of the cellular material. A pathologist with subspecialty board certification
in gastrointestinal cytopathology reviewed the slides and cell counts were determined using standard methodology. Each slide was
viewed under high-power and standard visual estimation techniques were used to determine the total number of cells sampled. The
results showed an average number of cells greater than 25,000 for the EsoCheck device compared to an average number of cells greater
than 11,000 for the Hobbs Medical Cytology Brush.
Once
the targeted region of the esophagus is swabbed collecting cells on the balloon’s surface, the Collect+Protect Technology
pulls the collected cells into the capsule where they are then protected during the retrieval process. Avoiding sample dilution
is a key feature of the device since capturing unnecessary cells decreases the ability to detect the needed signal. The sampled
cells can then be sent onto a molecular laboratory to perform any commercially available diagnostic test.
The
use of EsoGuard, on samples collected using EsoCheck, may offer an accurate, lower cost, non-invasive approach, that does not
require endoscopy, to screen for BE and EAC. The use of EsoGuard, on samples collected using EsoCheck, is not intended as a replacement
for EGD. Instead of replacing EGD, it is our vision that the use of EsoGuard, on samples collected using EsoCheck, may “enlarge
the top of the funnel” of high risk individuals who get screened in the first place; those who test positive by EsoGuard
will proceed to an EGD, whether as a confirmatory diagnostic procedure, a therapeutic ablation procedure, or both.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure - continued
Our
EsoGuard and EsoCheck Solution - continued
By
focusing the use of these follow-up EGDs on patients with the highest pre-EGD likelihood of a positive finding, and by doing so
more effectively and less expensively than the current risk stratification criteria allow, the use of EsoGuard, on samples collected
using EsoCheck, may enable health care systems to allocate more effectively the resources they currently spend on performing EGDs.
EsoGuard
and EsoCheck Development and Commercial Status
EsoCheck
is commercially available under a substantial equivalence determination made by the FDA pursuant to a 510(k). On June 21, 2019,
Lucid was notified by FDA that it may market EsoCheck, subject to the general controls provisions of the Food, Drug, and Cosmetic
Act (the “FDCA”), as a cell collection device indicated for use in the collection and retrieval of surface cells
of the esophagus in the general population of adults, 22 years of age and older.
EsoGuard
is commercially available to be prescribed by physicians for patients in the United States as an LDT and has been reported in
an article in Science Translational Medicine to have a high sensitivity and specificity for the detection of Barrett’s
Esophagus with and without dysplasia, as well as for EAC. LDT refers to a laboratory developed test and is a type of molecular
diagnostic test that is designed, manufactured and used within a single laboratory which is also certified pursuant to the CLIA
to support the marketing of the test.
EsoCheck
(i.e., by itself) may be used routinely by physicians to collect esophageal cells for various medical diagnostic purposes,
including to diagnose or manage conditions such as Esophageal Candidiasis (a yeast infection of the esophagus which occurs in
patients with compromised immune systems) and Eosinophilic Esophagitis (a common inflammatory condition of the esophagus) (“EoE”).
EsoGuard (i.e., also by itself) may be performed on cytology samples collected by a means other than EsoCheck, e.g.,
via EGD. However, our present clinical development focus, and the subject of a recent IVD pre-submission meeting with the FDA,
is on assessing the performance of the combined system (i.e., the use of the EsoGuard assay on cells collected using EsoCheck)
as a screening tool to detect BE, with and without dysplasia, and/or EAC, in individuals deemed to be at high risk for these conditions.
Eosinophilic
Esophagitis
In
March 2020, we entered into a clinical trial research agreement with the University of Pennsylvania (“Penn”) for a
clinical trial designed to evaluate whether Lucid’s EsoCheck Esophageal Cell Collection Device with Collect+Protect™
Technology provides a less invasive, more efficient, and cost-effective alternative to endoscopic biopsies in the management of
patients with EoE.
EoE
is a rapidly emerging allergy-mediated inflammatory condition of the esophagus similar to and often associated with inflammatory
bowel disease (“IBD”). Although underappreciated by the medical community and frequently confused with GERD, EoE has
a prevalence comparable to IBD and exacts a significant burden on patients. It can lead to swallowing difficulties, esophageal
scarring, food impaction and pain. Current treatment includes oral steroids and an elimination diet. Since inflammation can persist
despite resolution of symptoms, treatment courses can be very difficult and costly for patients, requiring multiple and frequent
invasive endoscopies with biopsies. To date efforts to replace endoscopy with a non-invasive diagnostic device have proven unsuccessful.
The
Lucid-Penn agreement covers a research program entitled “Pilot Study of EsoCheck Compared to Biopsies and Brush Cytology
During Endoscopy for Evaluation of Eosinophilic Esophagitis” (the “Study”) led by principal investigator
Gary W. Falk, M.D., M.S., AGAF. Dr. Falk is a professor of Gastroenterology, the clinical co-director of the Joint Center for
Digestive, Liver and Pancreatic Medicine at the Perelman School of Medicine at the University of Pennsylvania, and the co-director
of the Penn Medicine Esophageal and Swallowing Center at the Hospital of the University of Pennsylvania. He is also a Director
of the International Society for Diseases of the Esophagus and Past President of the American Society of Gastrointestinal Endoscopy
(ASGE).
The
trial is a prospective cross-sectional pilot feasibility study of ten patients with suspected or established EoE scheduled for
a clinically indicated upper endoscopy. The patients will undergo esophageal sampling using EsoCheck followed by endoscopy, including
brushings and biopsies. The primary endpoint of the trial is the sensitivity and specificity of EsoCheck versus endoscopic biopsy
in the assessment of EoE.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure - continued
EsoGuard
and EsoCheck Development and Commercial Status - continued
Barrett’s
Esophagus Screening Tool
We
intend to seek FDA approval for the use of EsoGuard, on samples collected using EsoCheck, as an IVD device through a PMA submission.
The combined system may offer an accurate, lower cost, non-invasive, approach to screen for BE with and without dysplasia, and
for EAC, as compared with the current gold standard, namely diagnostic EGD plus biopsy. EsoCheck used for this purpose is performed
as a five-minute office-based procedure without sedation. Samples collected are sent for laboratory analysis by EsoGuard and typically
result in the issuance of a report of findings to the ordering physician, in under three weeks from the date of the test.
In
October 2019, we had a pre-submission meeting with the FDA seeking FDA guidance on the clinical development plan we propose to
conduct, consisting of a screening study and a case control study, in support of a future PMA submission to approve EsoCheck and
EsoGuard as an IVD medical device. We expect to enroll our first patient in the early part of 2020.
In
February 2020, we received Breakthrough Device designation from the FDA for its EsoGuard™ Esophageal DNA Test on esophageal
samples collected using its EsoCheck Cell Collection Device in a prevalent well-defined group of patients at elevated risk for
esophageal dysplasia due to chronic GERD. The FDA Breakthrough Device Program was created to offer patients more timely access
to breakthrough technologies which “provide for more effective treatment or diagnosis of life-threatening or irreversibly
debilitating human disease or conditions” by expediting their development, assessment and review through enhanced communications
and more efficient and flexible clinical study design, including more favorable pre/post market data collection balance. Breakthrough
Devices receive priority FDA review, and a bipartisan bill before Congress (H.R. 5333) seeks to require Medicare to temporarily
cover all Breakthrough Devices for three years while determining permanent coverage.
EsoGuard
Business Strategy
The
EsoGuard technology is progressing through a two-phase regulatory and commercialization strategy which seeks to maximize the long-term
commercial opportunity while providing near-term commercial milestones.
Near-Term
Strategy
In
June 2019, we received 510(k) marketing clearance for the EsoCheck cell collection device from the FDA, which determined that
EsoCheck is substantially equivalent to legally marketed predicate devices for its indication for use, namely “the collection
and retrieval of surface cells of the esophagus in the general population of adults, 22 years of age or older.” We are also
pursuing other indications for EsoCheck beyond its use to collect cells for the EsoGuard DNA test. We have engaged key advisors
to begin utilizing EsoCheck in other common esophageal conditions such as Esophageal Candidiasis and EoE.
EsoGuard
has been established as an LDT and was launched commercially in December 2019 after completing CLIA/CAP certification of the test
at Lucid’s commercial diagnostic laboratory partner ResearchDx, headquartered in Irvine, CA.
Laboratory
Developed Tests
LDTs
are clinical laboratory tests that are designed, manufactured and used within a single laboratory. The laboratories that furnish
LDTs are subject to regulation under CLIA and state clinical laboratory licensure laws (where applicable). The FDA takes the position
that LDTs meet the definition of a medical device under the FDCA. Historically, however, the FDA has exercised enforcement discretion
with respect to most LDTs, and not actively enforced the regulatory requirements that otherwise apply to medical device manufacturers
(e.g., premarket review, Quality Systems Regulation, adverse event reporting, establishment registration, device listing).
The FDA has traditionally chosen to exercise enforcement discretion because LDTs were limited in number, were relatively simple
tests, and were typically used to diagnose rare disease and uncommon conditions.
In
October 2014, the FDA published two draft guidance documents describing a proposed risk-based framework under which the FDA proposed
to end enforcement discretion and begin regulating LDTs as medical devices. The FDA’s draft framework proposed, among other
things, premarket review for higher-risk LDTs, such as those that have the same intended use as FDA-approved companion diagnostic
currently on the market. In November 2015, the FDA issued a report citing evidence for the need for additional regulation of LDTs
and stated the FDA is continuing to work to finalize the 2014 draft guidance. However, in November 2016, the FDA announced that
it did not intend to finalize the draft guidance at that time. In January 2017, the FDA issued a Discussion Paper on LDTs, which
confirmed it did not intend to finalize the draft guidance at that time to allow more time for public discussion and time for
the congressional authorizing committees to develop a legislative solution. Various legislative proposals that would give FDA
express authority to regulate LDTs have been proposed since that time, but the chances of any specific proposal being enacted
remain unclear at this time. It is also unclear at this time if or when the FDA may end enforcement discretion for LDTs, and the
FDA may decide to regulate certain LDTs on a case-by-case basis at any time. Action by the FDA to actively regulate our LDT may
materially impact our ability to develop and commercialize EsoGuard as planned.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure - continued
EsoGuard
Business Strategy - continued
Reimbursement
Strategy
Successful
commercialization of our EsoGuard test depends, in large part, on our receipt of adequate reimbursement from government insurance
plans, including Medicare and Medicaid, managed care organizations and private insurance plans. We are in the process of seeking
a Local Coverage Determination (“LCD”) from Palmetto GBA (“Palmetto”), the Medicare Administrative Contractor
(“MAC”) that coordinates coverage for molecular diagnostic tests and will subsequently seek private payer health insurance
coverage for patients. As of yet, no payer has adopted a positive coverage policy for EsoGuard. Until such time, we will need
to obtain reimbursement from payers on a case-by-case basis.
At
the end of March 2019, we submitted an application for a Proprietary Laboratory Analysis (“PLA”) code for EsoGuard
to the American Medical Association (the “AMA).” The AMA assigned EsoGuard PLA code 0114U “Gastroenterology
(Barrett’s esophagus), VIM and CCNA1 methylation analysis, esophageal cells, algorithm reported as likelihood for Barrett’s
esophagus” effective October 1, 2019.
The
Clinical Laboratory Fee Schedule (“CLFS”) has not yet set the Center for Medicare and Medicaid Services (“CMS”)
reimbursement rate for EsoGuard or EsoCheck, and neither have any other third-party payers approved reimbursement or set a reimbursement
rate for our products. In December 2019, CMS posted the Final Determinations for new and revised billing codes for laboratory
services under the Medicare CLFS. Under the Final Determinations, Medicare payment for the EsoGuard test will be set by the regional
MACs under the “gapfill” process. Under this process, the MACs will consider test charges, resources, rates paid by
other payers, rates paid for similar tests, and other factors. CMS will take the regional rates set by MACs in early 2020 and
determine a preliminary CLFS rate for 2021 at the median of the MAC rates. This preliminary rate will be subject to comments before
being finalized later in 2020. The final gapfill amount will apply for the period January 1, 2021 through December 31, 2023.
Commercial
third-party payors often rely upon Medicare coverage policy and payment limitations in setting their own reimbursement policies.
Third-party payers are increasingly attempting to contain healthcare costs by limiting both coverage and the level of reimbursement
for new healthcare products. As a result, there is uncertainty surrounding whether EsoGuard or EsoCheck, or any other product
or service we develop, will be eligible for coverage by third-party payers or, if eligible for coverage, what the reimbursement
rates will be. Reimbursement of esophageal cancer screening by a third-party payer may depend on a number of factors, including
a payer’s determination that tests using our technologies are: sensitive and specific for esophageal cancer and pre-cancer;
not experimental or investigational; approved or recommended by the major guidelines organizations; reliable, safe and effective;
medically necessary; appropriate for the specific patient; and cost-effective.
Medicare
For
EsoGuard, Medicare reimbursement is critical. CMS relies on a network of MACs to process provider claims for reimbursement, including
claims for diagnostic tests. Where appropriate, MACs draft and finalize LCDs that describe the circumstances under which an item
or service that is not included in the CLFS will (or will not) be covered. Almost all EsoGuard claims will be processed
by the MAC for California, Noridian Healthcare Solutions (“Noridian”). Noridian participates in the Molecular Diagnostic
Services (“MolDX”) Program coordinated by Palmetto. Under the MolDX Program, Palmetto reviews a detailed dossier of
information describing the performance characteristics of molecular diagnostic tests (i.e., data describing the test’s
analytical validity, clinical validity, and clinical utility) and, working collaboratively with other MAC medical directors, decides
whether to cover a test. We will need to work with the MolDX Program to obtain a favorable final LCD before Noridian will pay
claims for EsoGuard.
LDTs
that are covered by Medicare are generally reimbursed under the Medicare CLFS. From time to time, Congress has revised the Medicare
statute, including how CMS establishes CLFS payment rates. The payment amounts established under the Medicare fee schedules (such
as the CLFS) are important because they will determine the amount of reimbursement for a diagnostic under Medicare, and those
payment amounts are also often used as a basis for payment amounts set by other governmental and private third-party payers. For
example, state Medicaid programs are prohibited from paying more than the CLFS rate for clinical laboratory services furnished
to Medicaid recipients.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure - continued
EsoGuard
Business Strategy - continued
Reimbursement
Strategy - continued
Private
Third-Party Payers
In
addition to seeking Medicare coverage and reimbursement, we will seek coverage and reimbursement from private payers such as health
insurance companies and HMOs. Private payers generally will determine whether to approve an LDT for reimbursement based on the
published results demonstrating the analytical validity, clinical validity, and clinical utility of the test.
Reimbursement
rates paid by private third-party payers can vary based on whether the provider is considered to be an “in-network”
provider, a participating provider, a covered provider, an “out-of-network” provider or a non-participating provider.
These definitions can vary among payers. An in-network provider usually has a contract with the payer or benefits provider. This
contract governs, among other things, service-level agreements and reimbursement rates. In certain instances, an insurance company
may negotiate an in-network rate for our testing. An in-network provider may have rates that are lower per test than those that
are out-of-network, and that rate can vary widely. Rates vary based on the payer, the testing type and often the specifics of
the patient’s insurance plan. If a laboratory agrees to contract as an in-network provider, it generally expects to receive
quicker payment and access to additional covered patients. However, it is likely that we will initially be considered an “out-of-network”
or non-participating provider by payers who cover the vast majority of patients until we can negotiate contracts with the payers.
Our out-of-network claims may be subject to certain “surprise billing” restrictions enacted by state legislatures
and/or currently under consideration in the U.S. Congress.
We
cannot predict whether, or under what circumstances, payers will cover and pay for our tests. Full or partial denial of coverage
by payers, or reimbursement at inadequate levels, would have a material adverse impact on our business and on market acceptance
of our tests.
We
are pursuing a variety of strategies to maximize commercial payer coverage for EsoGuard, including developing cost effectiveness
data to provide to payers to make the case for EsoGuard reimbursement. We will focus our efforts on large national and regional
insurers and health plans that have affiliated health systems.
When
there is a private or governmental third-party payer coverage policy in place, we will bill the payer through our contract laboratory
service provider (and the patient for cost-sharing, where applicable). Our efforts in obtaining reimbursement based on individual
claims, including pursuing appeals or reconsiderations of claims denials, could take a substantial amount of time, and bills may
not be paid for many months, if at all. Furthermore, if a third-party payer denies coverage after final appeal, payment may not
be received at all. Where there is no coverage policy in place, we will pursue reimbursement on a case-by-case basis.
Longer-Term
Strategy
Our
longer-term strategy is to secure a specific indication, based on published guidelines, for BE screening in certain at-risk
populations using EsoGuard on samples collected with EsoCheck. This requires having the EsoGuard screening system cleared or approved
by the FDA as an IVD device, a process which is progressing in close collaboration with our medical and regulatory advisors, including
the former Director, Office of In Vitro Diagnostics and Radiological Health, FDA Center for Devices and Radiological Health. An
FDA pre-submission package outlining Lucid-sponsored clinical studies to be performed in support of this indication has been submitted
and a pre-submission meeting held with the FDA on October 9, 2019 to discuss its clinical data requirements for a premarket submission
to approve EsoGuard as an IVD medical device. As part of advancing this longer-term strategy, PAVmed hired David F. Wurtman, M.D.,
in February 2019 to act as, and spend substantially all of his time as, Lucid’s Chief Medical Officer. In June 2019, PAVmed
hired Randy Brown, to act as and spend substantially all of his time as Lucid’s Chief Operating Officer. Mr. Brown, who
recently served as the director of clinical operations of a large multinational medical device company, is overseeing clinical
planning of these upcoming clinical trials sponsored by Lucid, as well as operations of the EsoGuard LDT. In September 2019, we
entered into an agreement with a clinical research organization (“CRO”) in connection with EsoGuard clinical trials.
The CRO will assist us with conducting two concurrent clinical trials, an EsoGuard screening study and an EsoGuard case control
study. The term of the agreement with the CRO runs from the September 2019 to the conclusion of the respective clinical trials,
which is expected not to exceed 31 months. The agreement may be cancelled with sixty days written notice, without an early termination
fee. We enrolled our first patient in the clinical trials in February 2020.
The
screening study will enroll GERD patients without a prior diagnosis of BE or EAC who satisfy ACG BE screening guidelines. The
case control study will enroll patients with a previous diagnosis of non-dysplastic BE, dysplastic BE (both low and high-grade)
or EAC. In both studies, EsoGuard will be compared to the gold standard of endoscopy with biopsies. In February 2020, EsoGuard
has received Breakthrough Device designation from the FDA for its EsoGuard Esophageal DNA Test on esophageal samples collected
using its EsoCheck Cell Collection Device in a prevalent well-defined group of patients at elevated risk for esophageal dysplasia
due to chronic GERD.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure - continued
EsoGuard
Business Strategy - continued
FDA
Breakthrough Device
The
U.S. Food and Drug Administration “Breakthrough Device” designation relates to the FDA’s Breakthrough Device
Program that was created to offer patients more timely access to breakthrough technologies which provide for more effective treatment
or diagnosis of life-threatening or irreversibly debilitating human disease or conditions by expediting their development, assessment
and review through enhanced communications and more efficient and flexible clinical study design, including more favorable pre-
and post-market data collection. Breakthrough Devices receive priority FDA review, and a bipartisan bill before Congress (H.R.
5333) seeks to require Medicare to temporarily cover all Breakthrough Devices for three years while determining permanent coverage.
In-Vitro
Diagnostics
IVDs
are regulated by the FDA as medical devices. Medical devices marketed in the United States are subject to the regulatory controls
under the FDCA and regulations adopted by the FDA. Some requirements, known as premarket requirements, apply to medical devices
before they are marketed, and other requirements, known as post-market requirements, apply to medical devices after they are marketed.
The
particular premarket requirements that must be met to market a medical device in the United States will depend on the classification
of the device under FDA regulations. Medical devices are categorized into one of three classes, based on the degree of risk they
present. Devices that pose the lowest risk are designated as Class I devices; devices that pose moderate risk are designated as
Class II devices and are subject to general controls and special controls; and the devices that pose the highest risk are designated
as Class III devices and are subject to general controls and premarket approval.
A
premarket submission to the FDA will be required for some Class I devices, most Class II devices; and all Class III devices. Most
Class I and some Class II devices are exempt from premarket submission requirements. Some Class I and most Class II devices may
be marketed after a 510(k) clearance, while a more extensive PMA is required to market Class III devices.
Unless
the FDA begins enforcing the medical device requirements with respect to LDTs (either generally or with respect to our specific
test), or Congress enacts legislation that explicitly gives FDA the authority to regulate LDTs, EsoGuard (as a stand-alone product)
will not be subject to FDA requirements, including (without limitation) the requirements for FDA premarket review and post-market
controls. Since the EsoGuard test is being performed in a clinical laboratory, the laboratory will be subject to CLIA requirements,
as well as the laboratory requirements in the state in which the laboratory is located (if applicable). Insofar as the laboratory
accepts specimens from patients nationwide, the laboratory will be required to obtain an out-of-state laboratory license from
regulators in New York, California, Pennsylvania, Maryland, and Rhode Island. Moreover, before we can begin offering our LDT to
patients in New York, we must obtain test-specific approval from the state.
Complying
with the FDA’s requirements for medical devices can be expensive, time consuming, and may subject us to significant or unanticipated
delays. If we are required to obtain premarket clearance or approval to perform or continue performing EsoGuard tests, or otherwise
become subject to FDA regulation (e.g., via an act of Congress), we cannot assure you that we will be able to obtain such clearance
or approval or comply with such regulations. Even if we obtain regulatory clearance or approval where required, such authorization
may not be for an intended use that we believe to be commercially attractive or critical to the commercial success of our tests.
As a result, the application of FDA oversight to our tests could materially and adversely affect our business, financial condition,
and results of operations.
However,
in parallel to our efforts to commercialize EsoGuard as an LDT,
we are engaging with the FDA to explore the possibility of performing EsoGuard on cell samples collected using EsoCheck as an
IVD. The IVD path seeks to secure a specific Barrett’s Esophagus screening indication for EsoGuard and EsoCheck as an FDA-cleared
device in high-risk GERD patients as defined by published society guidelines. This will allow EsoGuard and EsoCheck to be broadly
marketed together as a single diagnostic tool to screen patients for BE. It requires a premarket submission to the FDA supported
by strong clinical data demonstrating that EsoGuard performed on samples collected with EsoCheck is sufficiently sensitive and
specific to serve as a widespread screening tool in high-risk GERD patients recommended for screening. We have provided a pre-submission
document to the FDA outlining our clinical plan and have held a pre-submission meeting with the FDA on October 9, 2019 to review
the proposed clinical plan to meet the above endpoints in an effort to secure EsoGuard IVD FDA clearance as a medical device once
the clinical study is completed. The EsoGuard screening tool also has received a “Breakthrough Device” designation,
which will facilitate the process of seeking premarket approval.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure - continued
CWRU
License Agreement
In
May 2018, PAVmed incorporated Lucid Diagnostics and caused Lucid to issue a total of 10.0 million founders shares of its common
stock for a purchase price of $0.001 per share, including: the issue of 8,187,499 founders shares to PAVmed; 943,464 founders
shares to CWRU; and 289,679 founders shares to each of the three individual physician inventors of the of the intellectual property
and proprietary technologies underlying the CWRU License Agreement.
In
May 2018, Lucid entered into the CWRU License Agreement. Under the terms of the CWRU License Agreement, we acquired an exclusive
worldwide right to use the intellectual property rights to the EsoGuard and EsoCheck technology for the detection of changes in
the esophagus. CWRU retains the right to grant licenses to the EsoCheck and EsoGuard technology for other non-overlapping uses.
The
CWRU License Agreement required Lucid to pay an initial license fee to CWRU of approximately $273,000. The initial license fee
consisted of an initial payment of $50,000, followed by quarterly payments of $50,000 until such fee is paid-in-full, provided,
however, the commencement of the quarterly payments is subject to the Company consummation of a bona fide financing with an unrelated
third-party in excess of $500,000. As of December 31, 2019 and 2018, respectively, the balance of the initial license fee of
$273,000 remains unpaid.
The
CWRU License Agreement also provides for potential payments upon the achievement of certain product development and regulatory
clearance milestones. In this regard, upon FDA clearance on June 21, 2019 of the EsoCheck device, Lucid incurred a $75,000 milestone
payment. The CWRU License Agreement also provides for two additional milestone obligations with a payment of $100,000 due within
30 days upon the first commercial sale of a licensed product and a payment of $200,000 due upon a PMA submission to the FDA related
to a licensed product.
The
Company will be required to pay CWRU a royalty of 5% on net sales of less than $100,000,000 per contract year and 8% for net sales
greater than $100,000,000 per contract year, with the following minimum annual royalty payments:
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$50,000
per contract year beginning January 1 following the first anniversary of first commercial product sale;
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$150,000
per year for each year after the first year net sales of a licensed product exceed $25 million;
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$300,000
per year for each year after the first year net sales of a licensed product exceed $50 million;
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$600,000
per year for each year after the first year net sales of a licensed product exceed $100 million;
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Minimum
annual royalty amounts are adjusted by the percentage change in the CPI-W Consumer Price Index.
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Under
the CWRU License Agreement, Lucid is responsible for the costs of CWRU in preparing, filing and prosecuting any patents related
to the EsoGuard and EsoCheck technology (subject to a provision for cost sharing in the event CWRU grants other non-overlapping
licenses to the technology). CWRU agreed to apply for patent coverage, at Lucid’s expense, in any country requested by Lucid,
to the extent such protection is reasonably attainable. CWRU also may apply for patent, copyright or trademark rights to the EsoGuard
and EsoCheck technology in other countries, at its option, and Lucid will have no rights under any the patents in such countries
unless Lucid reimburses CWRU for its expenses. In the event of any actual or threatened infringement of any patent in the field
of use covered by the License Agreement, Lucid will have the first right to commence an action against the infringer. Lucid also
will have the right to defend against any claims that the EsoGuard and EsoCheck technology infringes on the intellectual property
rights of a third party.
The
CWRU License Agreement provides for Lucid to indemnify CWRU and certain related parties for any claims relating to product liability
or similar claims involving acts or omissions by Lucid in connection with the EsoGuard technology and the development, use or
sale of products based on such technology, or relating to Lucid’s gross negligence or willful misconduct, or relating to
our breach of the CWRU License Agreement, unless, in any case, such claim results from the gross negligence or willful misconduct
of CWRU.
The
CWRU License Agreement terminates upon the expiration of certain related patents, or on May 12, 2038 in countries where no such
patents exist, or upon expiration of any exclusive marketing rights that have been granted by the FDA or other U.S. government
agency, whichever comes later. The key EsoGuard U.S. patents begin to expire in August 2024, however, Lucid is pursuing applications
of the clinical utility to extend the patent protection with more recently filed families of cases that have a twenty year term
and will be set to expire in the mid to late 2030’s once they are issued. It is noteworthy that the accuracy confidence
of the EsoGuard assay has only been tested with cells collected using the EsoCheck Collect + Protect technology. The key EsoCheck
device U.S. patents begin to expire in December 2034. In the event that Lucid defaults in the payment of any amount when due under
the License Agreement, and such amount is not paid within 30 days of notice of nonpayment, CWRU may terminate the exclusivity
of the license or terminate the CWRU License Agreement in full. In addition, either party may terminate the CWRU License Agreement
upon the other party’s default in the performance of its obligations under the License Agreement, subject to certain grace
periods. Upon expiration of the CWRU License Agreement in the ordinary course, we expect to continue selling products using the
EsoGuard and EsoCheck technology, as CWRU’s proprietary intellectual property rights in the technology also will have expired.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure - continued
EsoGuard
Sales and Marketing
We
currently expect to commercialize the EsoCheck and EsoGuard products through a network of independent U.S. sales representative
and/or inventory-stocking medical distributors. To do so, we rely on having a high gross margin on our products, although there
can be no assurance that we will be able to achieve such margins. A high gross margin allows us to properly incentivize our independent
sales reps and distributors, which in turn allows us to attract the top independent reps and distributors with the most robust
networks in our targeted specialties. Independent distributors play an even larger role in many parts of Europe, most of Asia
and emerging markets worldwide.
We
eventually may, however, choose to build (or obtain through a strategic acquisition) our own sales and marketing team to commercialize
some or all of the EsoCheck and EsoGuard products if it is in our long-term interests. We may also choose to enter into distribution
agreements with one or more larger strategic partners whereby we retain full responsibility for the manufacturing of the EsoCheck
and EsoGuard products but outsource a substantial portion or all of our distribution to a partner with its own robust distribution
channels. Such agreements may include regional carve outs, minimum sales volumes, margin splitting and/or an option or right of
first offer to purchase the technology at a future date.
EsoGuard
Clinical Laboratory and EsoCheck Manufacturing
EsoGuard
will be marketed as an LDT, which is a clinical laboratory test that is designed, manufactured and used within a single laboratory.
The laboratories that furnish LDTs are subject to regulation under CLIA and state clinical laboratory licensure laws (where applicable).
We will depend on third parties as the clinical laboratories for our LDTs. Although we relied on the central reference laboratory
in Cleveland, Ohio, to complete our initial EsoGuard LDT validation process, as part of our longer term commercialization strategy,
we have established an outsourced contract relationship with ResearchDx, a state-of-the-art, highly automated contract diagnostic
organization in Irvine, California that is certified pursuant to federal CLIA requirements to perform key portions of the assay
to support the marketing of the EsoGuard LDT. ResearchDx will have the capacity to process and report on the volume of expected
patient samples using EsoGuard for the foreseeable future. We completed the EsoGuard LDT validation process at ResearchDx in December
2019, making the LDT test available for physicians to prescribe for patients.
We
currently have no plans to use in-house facilities to manufacture the EsoCheck device, because the fixed overhead costs and limited
flexibility involved in owning manufacturing facilities are not consistent with our business strategy. The diagnostic medical
device industry, including many of its largest players, depends heavily on contract manufacturers operating in the United States
and abroad. Diagnostic medical device manufacturers are subject to extensive regulation by the FDA and other authorities. Compliance
with these regulations is costly and particularly onerous on small, development-phase companies. Contract manufacturers can also
take advantage of significant economies of scale in terms of purchasing, machining, tooling, specialized personnel, sub-contracting
or even off-shoring certain processes to lower-cost operators. These economies are simply not available to us.
We
have relationships with many contract manufacturers and service providers, including those with specialized skills in several
processes important to our devices. We expect them to have sufficient capacity to handle our manufacturing needs and anticipate
that our growth will be better served by deploying our resources to expand our pipeline and commercialization efforts.
We
intend to work closely with our contract manufacturing partners and service providers to establish and manage the EsoCheck and
EsoGuard products’ supply chain, dual sourcing whenever possible. We expect to help them design and build the EsoCheck and
EsoGuard products’ manufacturing lines including subassembly, assembly, sterilization and packaging and to work closely
with them to manage our quality system, to assure compliance with all regulations and to handle inspections or other queries with
regulatory bodies. Our contract manufacturers have the ability to add lines and shifts to increase the manufacturing capacity
of the EsoCheck and EsoGuard products as our demand dictates. We may ship our products directly from our contract manufacturers,
but we may also choose to utilize third-party regional warehousing and distribution services.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure - continued
EsoGuard
and EsoCheck Intellectual Property
Our
GI Health business will depend on proprietary medical device and diagnostic technologies, including the EsoCheck and EsoGuard
technology licensed by us. We intend to vigorously protect our proprietary technologies’ intellectual property rights in
patents, trademarks and copyrights, as available through registration in the United States and internationally. Patent protection
and other proprietary rights are thus essential to our GI Health business. The EsoCheck and EsoGuard technology is protected by
patents in the United States and internationally, and our policy is to continue to aggressively file patent applications, both
independently and in collaboration with CWRU, as appropriate, to protect this technology and other proprietary technologies of
ours relating to our GI Health business, including inventions and improvements to inventions. Under the CWRU License Agreement,
CWRU has agreed to apply for patent coverage, at our expense, in any country requested by us, to the extent such protection is
reasonably attainable. We seek patent protection, as appropriate, on:
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the
product itself including all embodiments with future commercial potential;
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the
methods of using the product; and
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the
methods of manufacturing the product.
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In
addition to filing and prosecuting patent applications in the United States, we intend to file counterpart patent applications
in Canada, the European Union and other countries worldwide. Foreign filings can be cumbersome and expensive and we will pursue
such filings when we believe they are warranted as we try to balance our international commercialization plans with our desire
to protect the global value of the technology.
The
term of individual patents depends upon the legal term of the patents in the countries in which they are obtained. In most countries
in which we file, the patent term is 20 years from the earliest date of filing a non-provisional patent application. In the United
States, a patent’s term may be shortened if a patent is terminally disclaimed over another patent or as a result of delays
in patent prosecution by the patentee, and a patent’s term may be lengthened by patent term adjustment, which compensates
a patentee for administrative delays by the USPTO in granting a patent.
We
intend to continuously reassess and fine-tune our intellectual property strategy in order to fortify the position of our GI
Health business in the United States and internationally. Prior to acquiring or licensing a technology from a third party,
we will evaluate the existing proprietary rights, our ability to adequately obtain and protect these rights and the likelihood
or possibility of infringement upon competing rights of others.
We
will also rely upon trade secrets, know-how, continuing technological innovation, and may rely upon licensing opportunities in
the future, to develop and maintain our competitive position in our GI Health business. We intend to protect our proprietary rights
through a variety of methods, including confidentiality agreements and/or proprietary information agreements with suppliers, employees,
consultants, independent contractors and other entities who may have access to proprietary information. We will generally require
employees to assign patents and other intellectual property to us as a condition of employment with us. All of our consulting
agreements will pre-emptively assign to us all new and improved intellectual property that arise during the term of the agreement.
The
License Agreement with CWRU terminates upon the expiration of certain related patents, or on May 12, 2038 in countries where no
such patents exist, or upon expiration of any exclusive marketing rights that have been granted by the FDA or other U.S. government
agency, whichever comes later. The key EsoGuard U.S. patents begin to expire in August 2024, however, the company is pursuing
applications of the clinical utility to extend the patent protection with more recently filed families of cases that have a twenty
year term and will be set to expire in the mid to late 2030’s once they are issued. It is noteworthy that the accuracy confidence
of the EsoGuard assay has only been tested with cells collected using the EsoCheck Collect + Protect technology. The key EsoCheck
device U.S. patents begin to expire in December 2034. In the event that we default in the payment of any amount when due under
the License Agreement, and such amount is not paid within 30 days of notice of nonpayment, CWRU may terminate the exclusivity
of the license or terminate the License Agreement in full. In addition, either party may terminate the License Agreement upon
the other party’s default in the performance of its obligations under the License Agreement, subject to certain grace periods.
Upon expiration of the License Agreement in the ordinary course, we expect to continue selling products using the EsoGuard and
EsoCheck technology, as CWRU’s proprietary intellectual property rights in the technology also will have expired.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure - continued
EsoGuard
and EsoCheck Competition
The
U.S. market for esophageal cancer (i.e., EAC) and pre-cancer (i.e., BE, with or without dysplasia) screening is
large, consisting of more than 30 million at-risk individuals over the age of 50. Given the large market for pre-cancer screening,
we likely will face numerous competitors, some of which possess significantly greater financial and other resources and development
capabilities than us. Our EsoGuard test faces competition from procedure-based detection technologies such as upper endoscopy,
and other screening technologies such as pill-based imaging solutions like PillCam Eso, cleared by the FDA in November 2004, and
transnasal esophagoscopy, a flexible tube with a miniature camera that is inserted into the nose and advanced through the esophagus
into the upper portion of the stomach. Our EsoCheck device faces competition from other manufactures with devices designed to
collect cell samples from targeted regions of the esophagus. For example, Cytosponge is a small mesh sponge within a soluble gelatin
capsule that dissolves in the stomach and then is pulled thru the targeted region brushing the lining of the esophagus and then
later retrieved, although, unlike EsoCheck, it is unprotected from contamination. Interpace Diagnostics (Nasdaq: IDXG), NeoGenomics
(Nasdaq: NEO) and Cernostics (private) are developing progression type test for known patients with BE aimed at assessing or predicting
the likely development of EAC. Our competitors may also be developing additional methods of detecting esophageal cancer and pre-cancer
that have not yet been announced.
Accordingly,
the market for our GI Health products is highly competitive and is characterized by extensive research and clinical efforts and
rapid technological change. In order to compete effectively, EsoGuard and EsoCheck will have to achieve market acceptance, receive
adequate insurance coverage and reimbursement, be cost effective and be simultaneously safe and effective. We believe that the
principal competitive factors in our markets are:
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diagnostic
accuracy and the quality of outcomes for medical conditions;
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acceptance
by physicians and the medical device market generally;
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ease
of use and reliability;
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technical
leadership and superiority;
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effective
marketing and distribution;
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speed
to market; and
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product
price and qualification for coverage and reimbursement.
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Most
of our existing and potential competitors have substantially greater financial, marketing, sales, distribution, manufacturing
and technological resources. We may be unable to compete effectively against our competitors either because their products and
services are superior or more cost efficient, or because of they have access to greater resources than us. These competitors may
have greater name recognition than we do. Many of these competitors have obtained all desirable FDA or other regulatory approvals,
and superior patent protection, for their products. Certain of our competitors have already commercialized their products, and
others may commercialize their products in advance of our products. In addition, our competitors may make technical advances that
render our products obsolete. We may be unable to respond to such technical advances.
Notwithstanding
that the market for BE and EAC screening is highly competitive, we believe that EsoCheck, currently cleared by the FDA pursuant
to a 510(k), and EsoGuard, the first and only DNA-based non-invasive BE screening LDT test on the market today, compare favorably
to other available products and services. When used in combination after achieving FDA approval as an IVD medical device through
the PMA process, the use of EsoGuard, on samples collected using EsoCheck, may offer an accurate, lower cost, non-invasive approach,
that does not require endoscopy, to screen for BE and EAC. The test may be performed in five minutes, without sedation, in an
outpatient ambulatory setting such as a primary care or family practice physician’s office or a freestanding diagnostic
facility.
Item
1. Business - Continued
Background
and Overview - continued
GI
Health - Gastroenterology – EsoGuard, EsoCheck, and EsoCure - continued
EsoGuard
and EsoCheck Specific Government Regulation
HIPAA
and Other Privacy Laws
The
Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and
Clinical Health Act (“HIPAA”) established comprehensive protection for the privacy and security of health information.
The HIPAA standards apply to three types of organizations, or “Covered Entities”: health plans, healthcare clearinghouses,
and healthcare providers that conduct certain healthcare transactions electronically. Covered Entities and their business associates
must have in place administrative, physical, and technical standards to guard against the misuse of individually identifiable
health information. We perform activities that may implicate HIPAA, such as providing clinical laboratory testing services and
entering into specific kinds of relationships with Covered Entities and business associates of Covered Entities. Penalties for
violations of HIPAA include civil money and criminal penalties.
Our
activities must also comply with other applicable privacy laws, which impose restrictions on the access, use and disclosure of
personal information. More state and international privacy laws are being adopted. Many state laws are not preempted by HIPAA
because they are more stringent or are broader in scope than HIPAA. Beginning in 2020 we will also need to comply with the California
Consumer Privacy Act of 2018, which protects personal information other than health information covered by HIPAA. In the E.U.,
the General Data Protection Regulation (“GDPR”) took effect in May 2018 and imposes increasingly stringent data protection
and privacy rules. All of these laws may impact our business and may change periodically, which could have an effect on our business
operations if compliance becomes substantially costlier than under current requirements. Our failure to comply with these privacy
laws or significant changes in the laws restricting our ability to obtain patient samples and associated patient information could
significantly impact our business and our future business plans.
Self-Referral
Law
The
federal “self-referral” law, commonly referred to as the “Stark” law, provides that physicians who, personally
or through a family member, have ownership interests in or compensation arrangements with a laboratory are prohibited from making
a referral to that laboratory for laboratory tests reimbursable by Medicare, and also prohibits laboratories from submitting a
claim for Medicare payments for laboratory tests referred by physicians who, personally or through a family member, have ownership
interests in or compensation arrangements with the testing laboratory. The Stark law contains a number of specific exceptions
which, if met, permit physicians who have ownership or compensation arrangements with a testing laboratory to make referrals to
that laboratory and permit the laboratory to submit claims for Medicare payments for laboratory tests performed pursuant to such
referrals. We are subject to comparable state laws, some of which apply to all payers regardless of source of payment, and do
not contain identical exceptions to the Stark law.
Specimen
Transportation
Our
commercialization activities for EsoGuard subject us to regulations of the Department of Transportation, the United States Postal
Service, and the Centers for Disease Control and Prevention that apply to the surface and air transportation of clinical laboratory
specimens.
Environmental
The
cost of compliance with federal, state and local provisions related to the protection of the environment has had no material effect
on our GI Health business. There were no material capital expenditures for environmental control facilities in the years
ended December 31, 2018 and 2019, and there are no material expenditures planned for such purposes for the year ended December
31, 2020.
Item
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Background
and Overview - continued
Minimally
Invasive Interventions
CarpX
- Percutaneous Device to Treat Carpal Tunnel Syndrome
The
Market
CTS
is the most common cumulative trauma disorder and accounts for over half of all occupational injuries. The carpal tunnel is an
anatomic compartment in the wrist through which tendons and the median nerve pass. Cumulative trauma leads to inflammation which
manifests itself clinically through its compressive effect on the median nerve, resulting in motor and sensory dysfunction in
the hand. A survey published in the Journal of the American Medical Association reported 2.5% of U.S. adults, or approximately
five million individuals, have CTS and about 600,000 surgical procedures are performed annually for CTS. According to the Centers
for Disease Control and Prevention, CTS accounts for two million office visits per year. Of the CTS patients that are candidates
for surgery, an estimated 1.5 million CTS patients continue to suffer in silence rather than undergoing traditional invasive surgery
due to concerns over the prolonged recovery time associated with an open incision. According to the Agency for Health Care Policy
and Research, CTS costs the U.S. over $20.0 billion in annual workers’ compensation costs.
Current
Devices and Their Limitations
Patients
who have failed to improve with physical therapy or other non-invasive treatments are candidates for interventions which seek
to relieve the compression of the median nerve by cutting the transverse carpal ligament, which forms the superficial wall of
the carpal tunnel. Traditional surgical approaches are effective but are invasive and must be performed in a surgical operating
room. Endoscopic approaches are less invasive, but are more technically challenging, more expensive and have been associated with
higher complication rates. These approaches still require a surgical incision and some surgical dissection before the endoscope
is passed into the carpal tunnel. Two less-invasive devices are currently on the market. One device attempts to use transillumination
to guide blind passage of a protected knife and the other passes a saw-like device blindly or by ultrasound guidance. Technical
limitations have hindered market acceptance of these devices.
Our
Solution
We
have developed CarpX as a patented, single-use disposable, minimally invasive medical device designed as a precision cutting tool
to treat carpal tunnel syndrome while reducing recovery times. We believe our device will allow the physician to relieve the compression
on the median nerve without an open incision or the need for endoscopic or other imaging equipment. To use our device, the operator
first advances a guidewire through the carpal tunnel under the ligament. Our device is then advanced over the wire and positioned
in the carpal tunnel under ultrasonic and/or fluoroscopic guidance. When the balloon is inflated it creates tension in the ligament
positioning the cutting electrodes underneath it and creates space within the tunnel, providing anatomic separation between the
target ligament and critical structures such as the median nerve. Radiofrequency energy is briefly delivered to the electrodes,
rapidly cutting the ligament and relieving the pressure on the nerve. We believe our device will be significantly less invasive
than existing treatments. We also believe it will allow for more extensive lateral dissection within the tunnel and more reliable
division of the ligament, resulting in lower recurrence rates than some of the endoscopic approaches. The USPTO has issued U.S.
Patent 10,335,189 which covers the technology underlying PAVmed’s CarpX minimally invasive device developed to treat carpal
tunnel syndrome. The patent, assigned to PAVmed at its founding, lists Lishan Aklog, M.D., PAVmed’s Chairman and Chief
Executive Officer, and Brian J. deGuzman, M.D., its Chief Medical Officer, as inventors. We have advanced, in partnership
with our design and contract manufacturing partners, our CarpX product from concept to working prototypes, completed successful
benchtop and cadaver testing confirming the device consistently cuts the transverse carpal ligament, as well as commercial design
and development, and performed pre-submission verification and validation testing.
Item
1. Business - Continued
Background
and Overview - continued
Minimally
Invasive Interventions
CarpX
- Percutaneous Device to Treat Carpal Tunnel Syndrome - continued
Regulatory
History
On
November 2017, we filed with the FDA a premarket notification submission for CarpX under section 510(k) of the FDCA using a commercially
available carpel tunnel release device as a predicate.
In
July 2018, the FDA received our response to its requests-for-information regarding non-clinical support for our 510(k) premarket
notification submission. Our response to the FDA included results from an animal study, which documented the device’s bipolar
electrode design results in minimal spread of thermal energy – less than one-millimeter thermal injury by pathologic analysis
– and no increase in tissue temperatures except directly over the cutting electrodes. Our response also included additional
physician usability testing, wherein each of the hand surgeons successfully performed the CarpX procedure multiple times in cadavers.
In
August 2018 we were notified by the lead FDA branch reviewing the 510(k) premarket notification submission it had not reached
a consensus with the consulting branch within the review period allotted under the FDA’s rules and regulations. Accordingly,
the lead branch recommended we take the appropriate steps to extend the review process through resubmission of the 510(k) premarket
notification.
In
January 2019, following an in-person pre-submission meeting, the FDA recommended clinical testing to definitively document CarpX
procedural safety in humans and indicated data from a properly structured clinical study outside of the U.S. would be acceptable,
precluding the need to engage in the time-consuming FDA Investigational Device Exemption (IDE) process required for U.S. studies.
We offered to amend our previously planned first-in-human (“FIH”) clinical trial in New Zealand to meet this
clinical testing recommendation and postponed the initiation of the amended study until study parameters were finalized with the
FDA. We reached a consensus with the FDA on the parameters of the CarpX FIH safety study, including both pre-operative and post-operative
electrodiagnostic testing to document device safety. The CarpX FIH safety study was designed as a single-arm, two-center, two-surgeon,
20-patient study of the CarpX procedure in carpal tunnel syndrome patients, with a device safety primary endpoint defined as the
absence of certain serious device-related adverse events over a limited 90-day follow-up period.
By
August 2019, all 20 patients of its FIH 510(k) clinical safety study underwent successful CarpX procedures.
In
December 2019, PAVmed personnel and the local clinical investigators in New Zealand completed an on-site review of the study data
concluding that the device appeared to meet the study’s primary effectiveness and safety endpoints. The remaining
tasks required before a resubmission could occur included finalization of the clinical reports, including customary overreads
of the diagnostic test results by a U.S. physician. Following the completion of the overreads, the 510(k) application was compiled
with the requisite compendium of clinical data and submitted to the FDA.
In
March 2020, we announced the FDA acknowledged receipt of a 510(k) premarket notification submission for our CarpX minimally invasive
carpal tunnel device. This re-submission incorporates data from the FIH clinical safety study described above, in which all patients
met the study’s pre-specified safety and effectiveness endpoints. The final report noted that twenty carpal tunnel syndrome
patients in New Zealand underwent successful CarpX minimally invasive carpal tunnel release. All patients met the study’s
pre-specified effectiveness endpoint – clinical device technical success defined as the ability of CarpX to perform complete
division of the transverse carpal ligament as assessed by post-procedural endoscopic inspection of the transverse carpal ligament
after treatment. Two-week and 90-day post-operative follow-up rates were 100% and 95%, respectively, exceeding the target 80%
rate recommended by the FDA. The only loss to follow-up was a patient who was documented to be “back to normal” with
resolution of symptoms at six weeks but opted not to return to the study site because he was traveling a significant distance
away and was overall very satisfied with the procedure’s outcome.
All
patients who completed follow-up met the study’s pre-specified primary safety endpoint – device safety defined as
no serious adverse event probably or definitely related to the device resulting in significant morbidity through 90-day follow-up.
Patients underwent additional pre-specified outcome assessments at baseline and during post-operative follow-up, using well-established,
standardized and validated measures to assess patient satisfaction, as well as changes in symptoms, motor and sensory function
and neurophysiological parameters following carpal tunnel release. These outcome assessments included the Global Satisfaction
Questionnaire, QuickDASH and Boston Carpal Tunnel Syndrome (BCTQ) Questionnaires, Ten Test and Semmes-Weinstein Monofilament sensory
tests, Grip and Pinch Strength motor function tests, as well as nerve conduction and electromyographic studies. The excellent
results of these pre-specified outcome assessments following CarpX minimally invasive carpal tunnel release were similar to, or
better than, expected results following traditional open surgery.
Item
1. Business - Continued
Background
and Overview - continued
Minimally
Invasive Interventions
CarpX
- Percutaneous Device to Treat Carpal Tunnel Syndrome - continued
Regulatory
History - continued
Additional
observations from the study strongly support CarpX’s clinical and commercial potential. Surgeons were able to achieve the
same anatomic result as traditional open surgery using a minimally invasive approach. Endoscopic visualization showed that CarpX
cut the ligament cleanly and precisely, without evidence of thermal spread beyond the target tissue cut line. Procedure times
fell after a short learning curve, indicating that CarpX minimally invasive carpal tunnel release can be performed in the same
or less time as traditional open surgery. The final set of procedures were performed through 5-10 mm keyhole incisions, with no
incision crossing the base of the palm, an area known to be problematic for healing, resulting in delayed recovery and persistent
pain after traditional open surgery. The surgeons also observed that the CarpX balloon appeared to create more space within the
carpal tunnel than traditional carpal tunnel release, which could favorably impact long-term outcomes.
CarpX
Sales and Marketing
Once
we obtain market clearance from the FDA, we expect to commercialize our products through a network of independent U.S. sales representatives
and/or inventory-stocking medical distributors together with our in-house sales management and marketing teams. Our focus on high-margin
products, including CarpX, are particularly suitable to this mode of distribution. A high gross margin allows us to properly incentivize
our distributors, which in turn allows us to attract the top distributors with the most robust networks in our targeted specialties.
Independent distributors play an even larger role in many parts of Europe, most of Asia and emerging markets worldwide.
We
eventually may, however, choose to build (or obtain through a strategic acquisition) our own sales and marketing team to commercialize
some or all of our products if it is in our long-term interests. We may also choose to enter into distribution agreements with
larger strategic partners whereby we take full responsibility for the manufacturing of our products but outsource some or all
of its distribution to a partner with its own robust distribution channels. Such agreements may include regional carve outs, minimum
sales volumes, margin splitting and/or an option or right of first offer to purchase the technology at a future date. As our pipeline
grows, we may choose to jointly commercialize subsets of related products which target certain medical specialties or healthcare
locations.
Item
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Background
and Overview - continued
Infusion
Therapy – PortIO and NextFlo
PortIO
– Implantable Intraosseous Vascular Access Device
The
Market
Vascular
access devices, including peripheral intravenous catheters, central venous lines, peripherally inserted central catheters, tunneled
catheters or implanted ports, are used to deliver various medications, fluids, blood products, nutrition or other therapeutic
agents to patients with a wide variety of clinical conditions over multiple episodes spanning a period of days to weeks to months.
A report by iData Research Group estimates the market for such devices to be several billion dollars annually. The market is moderately
fragmented and highly commoditized, with slight premium pricing for modest features, including anti-infective coating, anti-thrombotic
properties, tip location and power injector compatibility.
Current
Devices and Their Limitations
Many
chronically ill patients requiring long-term vascular access devices have poor or no central venous access as a result of repeated
instrumentation of the veins or the presence of pacemaker and defibrillator leads, resulting in thrombosis or scarring. In addition,
patients with renal failure need preservation of their peripheral and central veins for future dialysis access. The decades-old
core technologies underlying currently available long-term vascular access devices have several limitations which relate directly
to the intravascular component of the device. Up to 10% of such devices become infected, which can lead to costly and severe complications
and even death (van de Wetering, Cochrane Database 2013). Since they are in constant contact with the blood stream, current devices
require regular flushes to clear stagnant blood and prevent thrombus formation and occlusion. Despite these maneuvers, up to one-third
of long-term vascular access devices become occluded at some point during their implantation period (Baskin, et al., Lancet 2009)
and the resulting clot can dislodge as an embolism causing further downstream complications. This complication requires treatment
with clot-dissolving agents or removal and implantation of a new device at an alternative site which in turn can lead to additional
complications. Finally, most long-term vascular access devices require surgical insertion and removal, radiographic confirmation
of tip placement and careful handling by trained clinicians to prevent the introduction of air into the circulation.
Our
Solution
The
intraosseous route provides a means for infusing fluids, medications and other substances directly into the bone marrow cavity
which communicates with the central venous circulation via nutrient and emissary veins. This route is well established, having
been used for decades in a variety of settings including trauma, especially military trauma, and pediatric emergencies. It has
been shown to be bioequivalent to the intravenous route. Complication rates are low and there are few contraindications. Recently,
physicians have expanded the use of the intraosseous route to non-emergent clinical scenarios. Currently available intraosseous
devices pass through the skin into the bone and are therefore limited to short term use. We have developed a novel, implantable
intraosseous vascular access device which does not require accessing the central venous system and does not have an indwelling
intravascular component. It is designed to be highly resistant to occlusion and, we believe, may not require regular flushing.
It features simplified, near-percutaneous insertion and removal, without the need for surgical dissection or radiographic confirmation.
It provides a near limitless number of potential access sites and can be used in patients with chronic total occlusion of their
central veins. We believe the absence of an intravascular component will result in a very low infection rate.
Our
PortIO implantable intraosseous vascular access device is being developed for up to seven days of continuous use, as a means for
infusing fluids, medications and other substances directly into the bone marrow cavity and from there into the central venous
circulation.
We
have advanced, in partnership with our design and contract manufacturing partners, our PortIO product from concept to working
prototypes, benchtop, animal, and cadaver testing, commercial design and development, verification and validation testing. We
are pursuing an FDA clearance for use in patients with a need for vascular access up to seven days, under de novo classification
of section 513(f)2 of the FDCA. The broader “seven days” clearance is being pursued in discussion with FDA following
our previous initial submission to the FDA for a 510(k) premarket notification for use in patients only requiring 24-hour emergency
type vascular access. The GLP animal study requested by the FDA has been completed along with supplementary cadaver and animal
studies. This data was submitted to the FDA as part of a pre-submission filing that included an in-person meeting on January 8,
2020 to define a likely small human clinical safety study through the de novo pathway. Based on encouraging animal data,
we are also planning a long-term (60-day implant duration) FIH clinical study in dialysis patients or those with poor venous access
in Colombia, South America and intend to fulfill the likely FDA request for human clinical data with an “outside-of-United
States” clinical safety study in Auckland, New Zealand. Of significance toward our belief of PortIO will one day become
the answer to solve many of the current drawbacks intravenous access devices regularly encounter, our supplemental animal testing
has demonstrated maintenance-free patency over a six-month implant duration.
Item
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Background
and Overview - continued
Infusion
Therapy – PortIO and NextFlo - continued
NextFlo
– Highly-Accurate Disposable Infusion System
The
Market
Each
day, over one million patients receive some type of infusion and 90% of hospitalized patients receive an intravenous infusion
at some point during their hospital stay. (Husch et al. Quality & Safety in Health Care 2005; 14:80-86). Unlike twenty years
ago, nearly all inpatient infusions, including routine ones which do not require flow adjustment, are delivered by expensive electric
infusion pumps instead of with simple gravity. An increasing number of these patients are receiving infusions of medications or
other substances outside of a hospital, in ambulatory facilities and at home. Disposable infusion pumps (“DIPs”) have
many attractive features that favor their use in these settings over outpatient electric infusion pumps. Patients tend to favor
DIPs because they are small, disposable, simple to operate, easy to conceal, and allow for greater mobility. They are used to
deliver medications including antibiotics, local anesthetics and opioids. According to a report by Transparency Market Research,
the overall global infusion market is estimated to be over $5.0 billion annually. DIPs account for approximately 10% of this market
and inpatient infusion sets for about 20%.
Current
Devices and Their Limitations
Infusion
pump errors are a serious ongoing problem and represent a large share of the overall human and economic burden of medical errors.
Electronic infusion pumps have become expensive, high-maintenance devices and have been plagued in recent years with recalls due
to serious software and hardware problems. These pumps are designed for fine titration of infusions in complex patients such as
those in a critical care setting. Using them for routine administration of medications or fluids is technological overkill. We
believe there is a significant market opportunity for a simple, disposable device which can be incorporated into a standard infusion
set and eliminate the need for expensive, problem-prone infusion pumps for routine inpatient infusions. In terms of outpatient
infusions, currently marketed DIPs are powered by elastomeric membranes, compressed springs, compressed gas or vacuum and controlled
by mechanical flow limiters. The primary limitation of DIPs is they can be highly inaccurate in actual use because they can be
susceptible to changes in operating conditions (e.g., temperature, atmospheric pressure, viscosity, back pressure, partial
filing and prolonged storage). As a result, their safety profiles make them unsuitable for use with medications, such as chemotherapeutics,
where flow accuracy is critical to achieve the desired therapeutic effect and avoid complications. The FDA’s MAUDE database
includes numerous reports of complications and even deaths as a result of DIPs infusing a particular medication too slowly or
too fast. We believe there is a significant market opportunity for highly accurate disposable infusion pumps for outpatient use.
Our
Solution
We
have developed a highly-accurate infusion system with variable flow resistors. We acquired U.S. Patent 8,622,976 issued January
7, 2014 and associated U.S. and international patent applications, “System and Methods for Infusion of Fluids Using Stored
Potential Energy and a Variable Flow Resistor”. We have built on the principles underlying this patent and developed
a new concept whereby the variable resistor does not have to be mechanically linked to the infusion drive mechanism. This simplifies
the design and expands the range of potential follow-on products. We have performed extensive computer simulation, built protypes,
and conducted benchtop testing on various embodiments and have demonstrated highly-accurate flow rates across a wide range of
driving pressures.
Our
NextFlo product has been developed as a highly accurate, disposable intravenous (“IV”) infusion set. NextFlo maintains
constant flow by incorporating a proprietary, passive, pressure-dependent variable flow-resistor consisting entirely of inexpensive,
easy-to-manufacture disposable mechanical parts. We believe this technology will permit hospitals to return to gravity-driven
infusions and eliminate expensive and troublesome electronic pumps for most of the over one million infusions of fluids, medications
and other substances delivered each day in hospitals and outpatient settings in the United States.
The
NextFlo disposable IV infusion set has achieved a key milestone in its quest to eliminate the need for complex and expensive electronic
infusion pumps. NextFlo testing has now repeatedly demonstrated it can achieve constant flow rates across a wide range of IV bag
heights, with accuracy rates comparable to electronic infusion pumps. Deloitte Consulting LLP has completed a comprehensive market
research and strategic analysis of NextFlo demonstrating a very large addressable market and recommended PAVmed seek a long-term
strategic partnership or acquisition. The global professional services firm Alvarez and Marsal has been running a formal M&A
process for NextFlo targeting strategic and financial partners. The process is active with ongoing discussion with multiple parties.
Item
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Background
and Overview - continued
Emerging
Innovations
We
are evaluating a number of product opportunities and intellectual properties covering a spectrum of clinical conditions, which
have either been developed internally or have been presented to us by clinician innovators and academic medical centers, for consideration
of a partnership to develop and commercialize these products. Additionally, we are exploring other opportunities to grow our business
and enhance shareholder value through the acquisition of pre-commercial or commercial stage products and /or companies with potential
strategic corporate and commercial synergies. The emerging innovation products that we presently believe are furthest along the
development timeline are as follows:
DisappEAR
PAVmed’s
DisappEAR pediatric ear tubes, manufactured from a proprietary aqueous silk technology licensed from Tufts University and two
Harvard teaching hospitals, seeks to revolutionize the care of the estimated one million children who undergo bilateral ear tube
placement each year to treat complex or recurrent middle ear infections or fluid collections, by eliminating the need for a second
procedure as well as the standard difficult-to-administer post-operative ear drop regimen. An eight-month animal study of DisappEAR
has been completed with excellent results. The ear tubes appear to possess unexpected surfactant properties which would provide
several unique benefits over traditional plastic tubes, including enhanced flow of fluids in and out of the tube and potential
intrinsic antimicrobial properties. A six-month GLP animal study has been completed and the Company is in active discussions with
a large strategic partner to produce commercial-scale aqueous silk to support a future FDA 510(k) submission and commercialization.
Noninvasive
Glucose Monitoring
In
October 2019, PAVmed incorporated Solys Diagnostics Inc. (“Solys”) and caused Solys to issue 8.3 million shares of
its common stock to PAVmed and also to immediately enter into a license agreement with Liquid Sensing, Inc., a subsidiary of Airware,
Inc., each an unrelated-third-party, in exchange for 1.5 million shares of Solys common stock issued to Airware, Inc., and 200,000
shares of Solys common stock issued to a unrelated-third-party consultant. Airware Inc. equity interests have certain anti-dilution
rights under limited circumstances and 810,810 shares of Solys common stock issued to Airware Inc. are subject to certain milestone
vesting restrictions. PAVmed Inc. and Airware Inc. have entered into a shareholder’s agreement which, among other customary
terms, limits certain transfers of their respective ownership interests in Solys.
The
exclusive worldwide licensing agreement with Liquid Sensing, Inc. grants to Solys a license for six issued and one pending U.S.
patents covering a proprietary nondispersive infrared laser technology for the non-invasive detection of glucose and other substances
such as electrolytes in tissue within the inpatient (e.g., hospital) field of use. Pursuant to the licensing agreement,
Solys will immediately advance the technology toward an established accuracy milestone for blood glucose monitoring within the
licensed field of use. Upon achievement of the accuracy milestone, it is expected Solys will then pursue a full regulatory and
development plan while also seeking to maximize the value of this proprietary technology with potential strategic partners or
acquirers in the blood glucose monitoring market. If commercialized by Solys, Liquid Sensing Inc. has the right to collect future
royalties on revenues related to the product developed for commercial use. Liquid Sensing Inc. has granted a 15 percent equity
interest in its company to PAVmed with a portion of the shares issued being subject to certain performance vesting restrictions.
FlexMo
– Extracorporeal Membrane Oxygenation (ECMO) Cannula
We
are developing a next generation Extracorporeal Membrane Oxygenation (“ECMO”) cannula to overcome current limitations
and challenges related to cannula positioning and vascular access. ECMO is a treatment that uses a pump to circulate blood through
an artificial lung back into the bloodstream during heart or lung failure or compromise. ECMO is used when the lungs cannot provide
enough oxygen to the body or cannot get rid of carbon dioxide, or the heart cannot pump enough blood to the body. Clinicians
have multiple choices in terms of cannula placement depending on the patient condition and traditionally two access sites are
necessary to complete the circuit. Many of these configurations require precision placement of the cannula to ensure oxygenated
blood is correctly circulated through the patient’s arterial system. The addition of these advanced and alternative tailored
placements of ECMO cannula will allow clinicians to serve a greater patient population and increases likelihood of procedural
success.
FlexMo’s
proposed embodiment will expand opportunities across all clinical spectrums by allowing the reinfusion into any anatomic location,
including Right Atrium, Right Ventricle, Pulmonary Artery, Left Atrium and the Aorta. With the advent of more portable and readily
available ECMO technology, the use of ECMO has increased for every clinical indication and usage will continue to rise. Further
development of FlexMo is subject to availability of additional financial resources. Once this product is commercialized, we believe
it will garner a premium pricing and support increased use of ECMO through simplified procedural steps and enhanced vascular access
pathways.
Item
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Background
and Overview - continued
Emerging
Innovations - continued
NextCath
- Self-Anchoring Short-Term Catheters
A
wide variety of short-term catheters are used in clinical practice to infuse fluids, medications or other substances into a vein
or other structures, to monitor physiologic parameters and to drain visceral organs or cavities. Currently marketed short-term
catheters are not self-anchoring, they have been traditionally anchored to the skin with simple tape or some
other adhesive incorporated into the sterile dressing. We are developing self-anchoring short-term catheters which do not
require suturing, traditional anchoring techniques or costly add-on catheter securement devices. We are initially focusing on
interventional radiology catheters which are less commoditized and result in significantly greater risk when dislodged. Our self-anchoring
technique, however, is applicable to most, if not all, short-term catheters. The self-anchoring mechanism is integral to the catheter.
It allows insertion with standard techniques and the use of simple clear sterile dressings. It allows the hub of the catheter
to be flat and the tubing to come out eccentrically, or parallel to the skin, improving patient comfort and catheter management.
We have filed a nonprovisional patent application, engaged design and contract manufacturing firms with experience in extrusions
which have completed initial design work on the first product in the NextCath product line, and completed head-to-head testing
of retention forces, comparing our working prototype to several competing products, which has validated our approach and advanced
the commercial design and development process focusing on optimizing the self-anchoring helical portion as well as cost of materials
and manufacturing processes. Further development of NextCath is subject to availability of additional financial resources. Once
this product is commercialized, we believe it will garner premium pricing based on fewer complications and reduced overall costs.
Additional
Products
We
are evaluating a number of product opportunities and intellectual property covering a spectrum of clinical conditions, which have
been presented to us by clinician innovators and academic medical centers, for consideration of a partnership to develop and commercialize
these products; we are also exploring opportunities to partner with larger medical device companies to commercialize our lead
products as they move towards regulatory clearance and commercialization. In this regard, we remain actively engaged with our
full-service regulatory consulting partner and who is working closely with our contract design, engineering and manufacturing
partners as our products advance towards regulatory submission, clearance, and commercialization.
We
are exploring other opportunities to grow our business and enhance shareholder value through the acquisition of pre-commercial
or commercial stage products and/or companies with potential strategic corporate and commercial synergies.
Our
product pipeline is dynamic, and we adjust our development and commercialization plans based on real-time progress, changes in
market conditions, commercial opportunity and availability of resources.
Item
1. Business - Continued
Background
and Overview - continued
Recent
Events
Product
Development Events
In
June 2019, Lucid, PAVmed’s majority owned subsidiary, received FDA 510(k) marketing clearance for EsoCheck as a generic
esophageal cell collection device. See “—GI Health— EsoGuard and EsoCheck Development and Commercial Status”.
In
October 2019, Solys Diagnostics, PAVmed’s majority owned subsidiary, entered into a license agreement with Liquid Sensing,
Inc., a subsidiary of Airware, Inc., granting Solys a license for six issued and one pending U.S. patents covering a nondispersive
infrared laser proprietary technology for the non-invasively detection of glucose and other substances such as electrolytes in
tissue within the inpatient (e.g., hospital) field of use. See “—Emerging Innovations—Noninvasive Glucose
Monitoring.”
In
December 2019, Lucid, PAVmed’s majority owned subsidiary completed CLIA/CAP certification for EsoGuard Esophageal DNA Test
as an LDT at Lucid’s commercial diagnostic laboratory partner, ResearchDx. See “—GI Health— EsoGuard Clinical
Laboratory and EsoCheck Manufacturing.”
In
January 2020, an FDA pre-submission in-person meeting was held to review PortIO’s GLP animal study and to define a small
human clinical safety study to support FDA approval through the de novo pathway. See “—Infusion Therapy—PortIO.”
In
February 2020, Lucid, PAVmed’s majority owned subsidiary, received Breakthrough Device designation from the FDA for EsoGuard
Esophageal DNA Test on esophageal samples collected using its EsoCheck Cell Collection Device. See “—GI Health—EsoGuard
Business Strategy.”
In
February 2020, the first patient was enrolled in Lucid’s IVD clinical trial for EsoGuard Esophageal DNA Test on esophageal
samples collected using its EsoCheck Cell Collection Device. See “—GI Health—EsoGuard Business Strategy.”
In
March 2020, we announced the FDA acknowledged receipt of a 510(k) premarket notification submission for the Company’s CarpX
minimally invasive carpal tunnel device, which incorporates data from the Company’s successful first-in-human CarpX clinical
safety study. See “—Minimally Invasive Interventions—CarpX.”
Item
1. Business - Continued
Background
and Overview - continued
Recent
Events
Financing
Transactions
In
April, May and June 2019, we raised approximately $5.4 million, net, from three registered direct offerings of 5,480,000 shares
of our common stock pursuant to our previously filed effective shelf registration statement on Form S-3 (File No. 333-220549).
In
November 2019, we consummated the sale of a Senior Secured Convertible Notes in a private placement with a $14.0 million aggregate
face value principle, referred to herein as the “November 2019 Senior Convertible Notes”.
The
November 2019 Senior Convertible Notes were further sub-divided into a Series A and Series B, each having a face value principal
of $7.0 million, with each referred to as the “Series A November 2019 Senior Convertible Notes” and the “ Series
B November 2019 Senior Convertible Notes”. The Series A and Series B November 2019 Senior Convertible Notes each provide
for the payment of a $700,000 lender fee, with such lender fee deducted from the proceeds when funded by the investors, and additionally,
we are obligated to pay a financial advisory fee to the placement agent of 6.5% of the cash proceeds upon their receipt.
With
respect to the Series A November 2019 Senior Convertible Notes, the investors delivered to us cash proceeds of $6.3 million on
November 4, 2019, after deducting $0.7 million of lender fee, and we incurred total offering costs of $550,254, including a $409,500
advisory fee paid to the placement agent.
Subsequent
to December 31, 2019, with respect to the Series B November 2019 Senior Convertible Note, the investors, at their election under
the prepayment provisions, delivered to the Company cash proceeds of $6.3 million on March 30, 2020 after deducting $0.7 million
of lender fees, and we paid an advisory fee of $409,500 to the placement agent.
In
connection with the November 2019 Senior Convertible Notes, a registration statement on Form S-3 was filed with the SEC in December
2019, which has not yet been declared effective, for the common stock underlying the Series A November 2019 Senior Convertible
Note.
Other
Events
The
Series B Convertible Preferred Stock provides for dividends at a rate of 8% per annum based on the $3.00 per share stated value
of the Series B Convertible Preferred Stock, with such dividends compounded quarterly, accumulate, and are payable in arrears
upon being declared by the Company’s board of directors. The Company’s board of directors declared a Series B Convertible
Preferred Stock dividend payment of earned but unpaid dividends as of December 31, 2019, payable as of January 1, 2020,
of an aggregate of $69,493, with such dividend payment settled by the issue of an additional 23,182 shares of Series B Convertible
Preferred Stock in accordance with the Series B Certificate of Designation.
Item
1. Business - Continued
Background
and Overview - continued
Our
Business Model
In
contrast to pharmaceuticals and other life science technologies, which typically require long and capital-intensive paths to translate
cellular or biochemical processes into commercially-viable therapeutics or diagnostics, we believe that medical devices have the
potential to move much more rapidly from concept to commercialization with significantly less capital investment. Many commercially
successful medical devices are often elegant solutions to important and prevalent clinical problems. Most medical device companies,
however, are not structurally or operationally equipped to fulfill this potential. According to a report by Josh Makower, M.D.,
Consulting Professor of Medicine at Stanford University, the typical medical device company will spend over $31.0 million and
take approximately five years to develop and commercialize a product through the FDA’s 510(k) pathway and over $100.0 million
and seven or more years through the FDA’s PMA pathway.
Prior
to forming PAVmed, our leadership team established a model to realize this potential in single-product companies by advancing
medical device products from concept to commercialization using significantly less capital and time than a typical medical device
company. When previously applied to single-product venture backed companies, the model utilized a virtual business structure.
PAVmed’s structure enables us to retain the model’s tight focus on capital and time efficiency and the core elements
which drive efficiency, including limited infrastructure and low fixed costs, while taking advantages of the economies of scale
and flexibility inherent in a multi-product company.
Project
Selection
A
key element of our model is the project selection process. We choose projects to develop and commercialize based on characteristics
which contribute to a strong commercial opportunity. We place a heavy emphasis on medical device products with the potential for
high-margins and high-impact in attractive markets without regard to the target specialty or clinical area.
Our
project selection process begins with the identification of an unmet clinical need. We seek prevalent medical conditions where
we believe an opportunity exists to advance the care of the patient through improvements in existing technologies or the introduction
of new platform technologies. In the current healthcare environment, this usually means our products must be less invasive and
more cost effective. We select projects which we believe have the potential to lessen procedural invasiveness and/or the opportunity
to shift care from the surgical operating room to lower-cost venues such as the interventional suite or the ambulatory setting.
We expect our products to decrease complications, hospital stays, recovery times and indirect costs associated with a patient’s
loss of productivity.
Additional
characteristics which impact a project’s commercial opportunity are its technology, regulatory and reimbursement profiles.
We typically select projects with strong intellectual property position, low to moderate technological complexity, low to moderate
manufacturing costs and primarily disposable products do not require significant capital equipment.
One
of the most important features we consider is the project’s regulatory pathway, both in the U.S. and internationally. The
FDA’s less arduous 510(k) pathway requires us to demonstrate our product is safe and substantially equivalent to FDA-cleared
predicates. The FDA’s costlier and more prolonged PMA pathway requires us to demonstrate our product is safe and effective
through randomized clinical studies. A product which is eligible for the 510(k) pathway will require substantially less capital
and time than one that requires full PMA clearance. With all our products we are very aggressive about identifying what we believe
are the quickest paths to regulatory clearance, paying very careful attention to selection of the best predicates and references
as well as careful attention to precisely crafting the primary indications for use language. Although we favor products eligible
for the FDA’s 510(k) pathway, with or without clinical safety studies, we may also pursue PMA pathway products with large
addressable markets, or in the case of one of our lead products, PortIO™, pursue classification under section 513(f)(2)
of the FDCA, also referred to as de novo classification, which could be more rigorous than the 510(k) pathway, but generally
require substantially less time and resources than a PMA pathway. We have a variety of options to commercialize such products
more efficiently by initially, or even exclusively, targeting European or emerging markets which have shorter, less costly regulatory
pathways for such projects. We also attempt to identify narrower applications and indications with lower regulatory hurdles will
allow us to start commercializing our product, while broader applications and indications with higher hurdles move through the
regulatory process.
The
project’s reimbursement profile, both in the U.S. and internationally, is another very important component of the project’s
commercial opportunity. We prefer projects with existing reimbursement codes, the opportunity to seek reimbursement under higher-value
surgical procedure codes or the potential to seek reimbursement under narrow, product-specific codes as opposed to bundled procedure
codes.
Item
1. Business - Continued
Background
and Overview - continued
Our
Business Model - continued
Development
and Commercialization Processes
Once
we add a project to our pipeline, we map out development and commercialization processes specifically tailored to the product
seeking to optimize capital and time efficiency and maximize value creation. The model emphasizes parallel development processes,
such as engineering, quality, regulatory, supply chain, and manufacturing, utilizing outsourced, best-in-class process experts
on an as-needed basis. We initially select the shortest, most-efficient path to commercialization of a safe and effective first-generation
product. We then proceed with iterative product development based on real-life product performance and user feedback.
We
intend to continue to utilize outsourced best-in-class process experts. We have strong relationships with a network of experts
in design engineering, regulatory affairs, quality systems, supply chain management and manufacturing, including many with highly
specialized skills in areas critical to our current and future pipeline. We will not be reluctant, however, to in-source certain
heavily utilized process experts when and if we decide such a move will enhance our ability to execute on our strategy. As we
grow, we expect to maintain a lean management infrastructure while expanding our bandwidth primarily with skilled project managers.
Although
the PHG and PMI companies were created with a credible path to self-commercialization, they were fundamentally “built to
sell.” We believe our structure will enhance our flexibility to commercialize our products compared to these and other single-product,
development-stage companies. Each of our products generally follow one of three commercialization pathways. For certain products
with one or more natural strategic acquirers such as PortIO and NextFlo, we may seek an early acquisition of the product prior
to or soon after regulatory clearance, providing us with a source of non-dilutive capital. For certain groundbreaking high-margin
products with large market opportunities such as CarpX™ and the EsoCheck™ Technology, we retain the flexibility to
fully commercialize our products for the foreseeable future. For certain other high-volume, lower sale price products such as
DisappEAR, we may seek to co-market them with strategic partners through sales and distribution agreements. For products we choose
to commercialize ourselves, we may do so through a network of independent U.S. medical representatives and/or inventory-stocking
distributors. We eventually may, however, choose to build (or obtain through a strategic acquisition) our own sales and marketing
team, initially utilizing a hybrid model with national /regional sales management of independent distributors moving towards direct
sales as warranted. As our pipeline grows, we may choose to jointly commercialize subsets of related products which target certain
medical specialties or healthcare locations
Research
and development expenses are recognized in the period they are incurred and consist principally of internal and external expenses
incurred for the research and development of our products. We incurred approximately $15.7 million in cumulative research and
development expenses from June 26, 2014 (inception) through December 31, 2019, inclusive of approximately $6.6 million and $4.3
million in each of the years ended December 31, 2019 and 2018, respectively. We plan to increase our research and development
expenses for the foreseeable future as we continue development of our products. Our only product to obtain regulatory approval
to date is EsoCheck, which has received 510(k) marketing clearance from the FDA as a generic esophageal cell collection device.
EsoGuard has been established as an LDT that does not require regulatory approval and was launched commercially in December
2019 after completing CLIA/CAP certification of the test at Lucid’s commercial diagnostic laboratory partner ResearchDx,
headquartered in Irvine, CA. Our current research and development activities are focused principally on obtaining FDA approval
and clearance and initializing commercialization of the other lead products in our product portfolio pipeline, such as EsoGuard
IVD, CarpX and PortIO, while advancing DisappEAR and NextFlo through development. The research and development activities on the
other portfolio products is commensurate with available sufficient capital resources.
Item
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Background
and Overview - continued
Our
Business Model - continued
Our
Implementation Strategy
We
intend to advance our lead products towards commercialization as quickly and efficiently as possible and expand our product pipeline
by advancing our conceptual phase projects through patent submission and early testing.
Although
we will continue to conceive and develop products internally, as we grow and expand our resources, we intend to expand our pipeline
with innovative products sourced from third parties. In contrast to pharmaceuticals and other life sciences technologies, medical
device innovation often begins with one, or at most a few, clinicians and/or engineers identifying an unmet clinical need and
proposing a technological solution to address such need. Many academic medical centers and other large institutions try to aggregate
their intellectual property through technology transfer centers and, more recently, through “innovation” centers which
do not merely secure and transfer intellectual property, but actually advance projects internally prior to spinning them out for
eventual commercialization.
It
is our belief, despite these efforts, only a small fraction of the potential pool of intellectual capital (i.e. the universe
of individual clinicians with innovative product ideas) is participating in medical device innovation. These clinicians rarely
engage in the process for a variety of reasons, including the belief they are too busy, can’t afford to divert time away
from their practice or that the upfront out-of-pocket costs are too great. Other clinicians believe they lack the knowledge or
connections to successfully navigate the process. Technology transfer and full-fledged innovation centers have only had modest
success in getting their clinicians to bring them innovative product ideas and even less success getting these products commercialized.
Even centers with extensive resources are usually limited in their ability to advance products beyond the pre-clinical phase and
are dependent on a shrinking pool of early-stage medical device venture capital to bring their products to market. Furthermore,
some technology transfer and innovation centers associated with not-for-profit hospitals, universities, endowments and charitable
organizations may be precluded from directly engaging in commercial sales of medical devices, creating opportunities for us to
commercialize and market their intellectual property.
Our
capital and time efficient model put us in strong position to partner with innovative clinicians and academic medical centers
focusing on medical device innovation. We have developed a collaboration model focused on licensing technologies for development
and commercialization. Since our founding, we have been contacted by clinicians and centers inquiring about opportunities to work
with us on developing and commercializing their ideas and technologies. In November 2016, we signed a definitive licensing agreement
with a group of leading academic institutions, including Tufts University and two Harvard Medical School teaching hospitals –
Massachusetts Eye and Ear Infirmary and Massachusetts General Hospital. The agreement provides us with an exclusive worldwide
license to develop and commercialize antibiotic-eluting resorbable ear tubes based on a proprietary aqueous silk technology conceived
and developed at these institutions, a product we have initially referred to as DisappEAR. More recently, in May 2018, we licensed
technologies from Case Western Reserve University for EsoGuard and EsoCheck. Within the twelve to eighteen months following the
grant date of the license, Lucid Diagnostics, our majority owned subsidiary, achieved FDA 510(k) market clearance for EsoCheck
and launched EsoGuard as an LDT at our contract laboratory in California. Typical in-license products, once commercialized, provided
for the licensor institution to receive royalties based on revenue, and/or milestone payments, potentially including a portion
of certain additional proceeds from the sale or sublicensing of the technology to a third party.
Whether
internally or externally sourced, we seek to maintain balance within our pipeline with shorter-term, lower-risk products which
offer the opportunity for more rapid commercialization, generating revenue to support development of longer-term products. As
each product moves through our pipeline from concept to commercialization, we continuously reassess the product’s long-term
commercial potential, balance it against other products in the pipeline and re-allocate resources accordingly. As such, we expect
to have much greater flexibility to move products through our pipeline based on the actual developments and the overall interests
of our company. We may accelerate, decelerate, pause or abandon a product and increase or decrease resources applied to a product
based on a variety of factors including available capital, shifts in the regulatory, clinical, market and/or intellectual property
landscape for a particular product, the emergence of one or more products with significantly greater commercial potential, or
any other factor which may impact its long-term commercial potential.
Item
1. Business - Continued
Background
and Overview - continued
Our
Business Model - continued
Approach
to Sales and Marketing
We
generally expect to commercialize our products through a network of independent U.S. medical representatives and/or inventory-stocking
distributors. We focus on high-margin products which are particularly suitable to this mode of distribution. A high gross margin
allows us to properly incentivize our distributors, which in turn allows us to attract the top distributors with the most robust
networks in our targeted specialties. Independent distributors play an even larger role in many parts of Europe, most of Asia
and emerging markets worldwide.
We
eventually may, however, choose to build (or obtain through a strategic acquisition) our own sales and marketing team to commercialize
some or all of our products if it is in our long-term interests. We may also choose to enter into distribution agreements with
larger strategic partners whereby we take full responsibility for the manufacturing of our products but outsource some or all
of its distribution to a partner with its own robust distribution channels. Such agreements may include regional carve outs, minimum
sales volumes, margin splitting and/or an option or right of first offer to purchase the technology at a future date. As our pipeline
grows, we may choose to jointly commercialize subsets of related products which target certain medical specialties or healthcare
locations.
Manufacturing
We
currently have no plans to manufacture our own products because the fixed overhead costs and limited flexibility that come with
owning manufacturing facilities are not consistent with our capital efficient model. The entire medical device industry, including
many of its largest players, depends heavily on contract manufacturers operating in the United States and abroad. Medical device
manufacturers are subject to extensive regulation by the FDA and other authorities. Compliance with these regulations is costly
and particularly onerous on small, development-phase companies. Contract manufacturers can also take advantage of significant
economies of scale in terms of purchasing, machining, tooling, specialized personnel, sub-contracting or even off-shoring certain
processes to lower-cost operators. These economies are simply not available to us.
We
have relationships with many contract manufacturers, including those with specialized skills in several processes important to
our devices. We expect them to have sufficient capacity to handle our manufacturing needs and anticipate our growth will be better
served by deploying our resources to expand our pipeline and commercialization efforts.
We
intend to work closely with our contract manufacturing partners to establish and manage our products’ supply chain, dual
sourcing whenever possible. We expect to help them design and build our products’ manufacturing lines including subassembly,
assembly, sterilization and packaging and to work closely with them to manage our quality system, to assure compliance with all
regulations and to handle inspections or other queries with regulatory bodies. Our contract manufacturers have the ability to
add lines and shifts to increase the manufacturing capacity of our products as our demand dictates. We may ship our products directly
from our contract manufacturers, but we may also choose to utilize third-party regional warehousing and distribution services.
Item
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Background
and Overview - continued
Our
Business Model - continued
Intellectual
Property
Our
business will depend on our ability to create or acquire proprietary medical device technologies to commercialize. We intend to
vigorously protect our proprietary technologies’ intellectual property rights in patents, trademarks and copyrights, as
available through registration in the United States and internationally. We currently have applied for or own 72 patents across
10 families of products. Patent protection and other proprietary rights are thus essential to our business. Our policy is to aggressively
file patent applications to protect our proprietary technologies including inventions and improvements to inventions. We seek
patent protection, as appropriate, on:
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the
product itself including all embodiments with future commercial potential;
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the
methods of using the product; and
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the
methods of manufacturing the product.
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In
addition to filing and prosecuting patent applications in the United States, we intend to file counterpart patent applications
in Europe, Canada, Japan, Australia, China and other countries worldwide. Foreign filings can be cumbersome and expensive, and
we will pursue such filings when we believe they are warranted as we try to balance our international commercialization plans
with our desire to protect the global value of the technology.
The
term of individual patents depends upon the legal term of the patents in the countries in which they are obtained. In most countries
in which we file, the patent term is 20 years from the earliest date of filing a non-provisional patent application. In the United
States, a patent’s term may be shortened if a patent is terminally disclaimed over another patent or as a result of delays
in patent prosecution by the patentee, and a patent’s term may be lengthened by patent term adjustment, which compensates
a patentee for administrative delays by the U.S. Patent and Trademark Office in granting a patent.
We
intend to continuously reassess and fine-tune our intellectual property strategy in order to fortify our position in the United
States and internationally. Prior to acquiring or licensing a technology from a third party, we will evaluate the existing proprietary
rights, our ability to adequately obtain and protect these rights and the likelihood or possibility of infringement upon competing
rights of others.
We
will also rely upon trade secrets, know-how, continuing technological innovation, and may rely upon licensing opportunities in
the future, to develop and maintain our competitive position. We intend to protect our proprietary rights through a variety of
methods, including confidentiality agreements and/or proprietary information agreements with suppliers, employees, consultants,
independent contractors and other entities who may have access to proprietary information. We will generally require employees
to assign patents and other intellectual property to us as a condition of employment with us. All of our consulting agreements
will pre-emptively assign to us all new and improved intellectual property that arise during the term of the agreement.
Item
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Background
and Overview - continued
Our
Business Model - continued
Approach
to Health Insurance Coverage and Reimbursement
Our
ability to successfully commercialize our products will depend in part on the extent to which governmental authorities, private
health insurers and other third-party payors provide coverage for and establish adequate reimbursement levels for the procedures
during which our products are used.
In
the United States, third-party payors continue to implement initiatives that restrict the use of certain technologies to those
that meet certain clinical evidentiary requirements. In addition to uncertainties surrounding coverage policies, there are periodic
changes to reimbursement. Third-party payors regularly update reimbursement amounts and also from time to time revise the methodologies
used to determine reimbursement amounts. This includes annual updates to payments to physicians, hospitals and ambulatory surgery
centers for procedures during which our products are used. An example of payment updates is the Medicare program’s updates
to hospital and physician payments, which are done on an annual basis using a prescribed statutory formula. In the past, when
the application of the formula resulted in lower payment, Congress has passed interim legislation to prevent the reductions.
A
product’s reimbursement profile, both in the U.S. and internationally, is an important component of the product’s
commercial opportunity. We prefer projects with existing reimbursement codes, the opportunity to seek reimbursement under higher-value
surgical procedure codes or the potential to seek reimbursement under narrow, product-specific codes as opposed to bundled procedure
codes. For those products that have high strategic value, but with less defined reimbursement, we have engaged reimbursement experts
and support from industry associations to accelerate the acquisition of satisfactory reimbursement levels.
Competition
for New Medical Device Innovation
Developing
and commercializing new products is highly competitive. The market is characterized by extensive research and clinical efforts
and rapid technological change. We face intense competition worldwide from medical device, biomedical technology and medical products
and combination products companies, including major medical products companies. We may be unable to respond to technological advances
through the development and introduction of new products. Most of our existing and potential competitors have substantially greater
financial, marketing, sales, distribution, manufacturing and technological resources. These competitors may also be in the process
of seeking FDA or other regulatory approvals, or patent protection, for new products. Our competitors may commercialize new products
in advance of our products. Our products also face competition from numerous existing products and procedures, some of which currently
are considered part of the standard of care. We believe the principal competitive factors in our markets are:
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the
quality of outcomes for medical conditions;
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acceptance
by surgeons and the medical device market generally;
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ease
of use and reliability;
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technical
leadership and superiority;
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effective
marketing and distribution;
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speed
to market; and
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product
price and qualification for coverage and reimbursement.
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We
will also compete in the marketplace to recruit and retain qualified scientific, management and sales personnel, as well as in
acquiring technologies and licenses complementary to our products or advantageous to our business. We are aware of several companies
that compete or are developing technologies in our current and future products areas. In order to compete effectively, our products
will have to achieve market acceptance, receive adequate insurance coverage and reimbursement, be cost effective and be simultaneously
safe and effective.
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1. Business - Continued
Background
and Overview - continued
Our
Business Model - continued
Government
Regulation
Government
authorities in the United States, at the federal, state and local level, and in other countries extensively regulate, among other
things, the research, development, testing, manufacture, quality control, approval, labeling, packaging, storage, recordkeeping,
promotion, advertising, distribution, post-approval monitoring and reporting, marketing and export and import of products such
as those we are developing. The following is a summary of the government regulations applicable to our business.
Healthcare
Reform
Current
and future legislative proposals to further reform healthcare or reduce healthcare costs may result in lower reimbursement for
our products, or for the procedures associated with the use of our products, or limit coverage of our products. The cost containment
measures payors and providers are instituting and the effect of any healthcare reform initiative implemented in the future could
significantly reduce our revenues from the sale of our products. Alternatively, the shift away from fee-for-service agreements
to capitated payment models may support the value of our products which can be shown to decrease resource utilization and lead
to cost saving - for both payors and providers.
The
implementation of the Affordable Care Act is an example that has the potential to substantially change healthcare financing and
delivery by both governmental and private insurers can have a significant impact on the pharmaceutical and medical device industries.
As
an example of Healthcare legislation volatility, the Affordable Care Act imposed, among other things, a new federal excise tax
on the sale of certain medical devices. The Consolidated Appropriations Act, 2016 (Pub. L. 114-113), signed into law on Dec. 18,
2015, included a two-year moratorium on the medical device excise tax imposed by Internal Revenue Code section 4191. Because of
the moratorium, the medical device excise tax did not apply to sales of taxable medical devices during the period beginning on
January 1, 2016 and ending on December 31, 2017. The moratorium expired on Dec. 31, 2017. On January 22, 2018 as part of a stop
gap spending bill, President Trump signed into law a moratorium for an additional two years retroactive to January 1, 2018. The
tax was scheduled to go into effect until January 1, 2020. On December 20, 2019, the U.S. President signed into law a federal
spending package that permanently repealed the 2.3% medical excise tax.
In
addition, the ACA implemented payment system reforms including a national pilot program on payment bundling to encourage hospitals,
physicians and other providers to improve the coordination, quality and efficiency of certain healthcare services through bundled
payment models. In addition, other legislative changes have been proposed and adopted since the Patient Protection and Affordable
Care Act, (“PPACA”) was enacted. On August 2, 2011, President Obama signed into law the Budget Control Act of 2011,
which, among other things, created the Joint Select Committee on Deficit Reduction to recommend to Congress proposals in spending
reductions. The Joint Select Committee did not achieve a targeted deficit reduction of at least $1.2 trillion for the years 2013
through 2021, triggering the legislation’s automatic reduction to several government programs. This includes reductions
to Medicare payments to providers of 2.0% per fiscal year, which went into effect on April 1, 2013, and will stay in effect through
2024 unless congressional action is taken. On January 2, 2013, the American Taxpayer Relief Act of 2012 took effect, which, among
other things, reduced Medicare payments to several providers, including hospitals, imaging centers and cancer treatment centers
and increased the statute of limitations period for the government to recover overpayments to providers from three to five years.
We expect additional state and federal healthcare reform measures will be adopted in the future, any of which could limit the
amounts federal and state governments will pay for healthcare products and services, which could result in reduced demand for
our products or additional pricing pressure. Additionally, there is no assurance the PPACA, in whole or in part, will not be repealed
in the future. Any impact such a repeal would have on the medical device industry remains unclear.
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Background
and Overview - continued
Our
Business Model - continued
Government
Regulation - continued
FDA
Regulation
Generally,
products we develop must be cleared by the FDA before they
are marketed in the United States. Before and after approval or clearance in the United States, our products are subject to
extensive regulation by the FDA under the FDCA and/or the Public Health Service Act, as well as by other regulatory bodies. FDA
regulations govern, among other things, the development, testing, manufacturing, labeling, safety, storage, recordkeeping, market
clearance or approval, advertising and promotion, import and export, marketing and sales, and distribution of medical devices
and products.
In
the United States, medical devices are subject to varying degrees of regulatory control and are classified in one of three classes
depending on the extent of controls the FDA determines are necessary to reasonably ensure their safety and efficacy:
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Class
I: general controls, such as labeling and adherence to quality system regulations;
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Class
II: special controls, pre-market notification (often referred to as a 510(k) application), specific controls such as performance
standards, patient registries, post-market surveillance, additional controls such as labeling and adherence to quality system
regulations; and
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Class
III: special controls and approval of a PMA application.
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In
general, the higher the classification, the greater the time and cost to obtain approval to market. There are no “standardized”
requirements for approval, even within each class. For example, the FDA could grant 510(k) status, but require a human clinical
trial, a typical requirement of a PMA. They could also initially assign a device Class III status but end up approving a device
as a 510(k) device if certain requirements are met. The range of the number and expense of the various requirements is significant.
The quickest and least expensive pathway would be 510(k) approval with just a review of existing data. The longest and most expensive
path would be a PMA with extensive randomized human clinical trials. We cannot predict how the FDA will classify our products,
nor predict what requirements will be placed upon us to obtain market approval, or even if they will approve our products at all.
To
request marketing authorization by means of a 510(k) clearance, we must submit a pre-market notification demonstrating the proposed
device is substantially equivalent to another currently legally marketed medical device, has the same intended use, and is as
safe and effective as a currently legally marketed device and does not raise different questions of safety and effectiveness than
does a currently legally marketed device. 510(k) submissions generally include, among other things, a description of the device
and its manufacturing, device labeling, medical devices to which the device is substantially equivalent, safety and biocompatibility
information, and the results of performance testing. In some cases, a 510(k) submission must include data from human clinical
studies. Marketing may commence only when the FDA issues a clearance letter finding substantial equivalence. After a device receives
510(k) clearance, any product modification that could significantly affect the safety or effectiveness of the product, or would
constitute a significant change in intended use, requires a new 510(k) clearance or, if the device would no longer be substantially
equivalent, would require PMA, or possibly, a de novo pathway under section 513(f)2 of the FDCA. In addition, any additional claims
the Company wished to make at a later date may require a PMA. If the FDA determines the product does not qualify for 510(k) clearance,
they will issue a Not Substantially Equivalent letter, at which point the Company must submit and the FDA must approve a PMA or
issue premarket clearance using the de novo before marketing can begin.
In
1997, the Food and Drug Administration Modernization Act (FDAMA) added the de novo classification pathway under section 513(f)(2)
of the FD&C Act, establishing an alternate pathway to classify new devices into Class I or II that had automatically been
placed in Class III after receiving a Not Substantially Equivalent (NSE) determination in response to a 510(k) submission. In
this process, a sponsor who receives an NSE determination may, within 30 days of receiving notice of the NSE determination, request
FDA to make a risk-based classification of the device under section 513(a)(1) of the Act.
In
2012, section 513(f)(2) of the FD&C Act was amended by section 607 of the Food and Drug Administration Safety and Innovation
Act (FDASIA), to provide a second option for de novo classification. In this second pathway, a sponsor who determines there is
no legally marketed device upon which to base a determination of substantial equivalence may request FDA to make a risk-based
classification of the device under section 513(a)(1) of the Act without first submitting a 510(k).
During
the review of a 510(k) submission, the FDA may request more information or additional studies and may decide the indications for
which we seek approval or clearance should be limited. In addition, laws and regulations and the interpretation of those laws
and regulations by the FDA may change in the future. We cannot foresee what effect, if any, such changes may have on us.
Item
1. Business - Continued
Background
and Overview - continued
Our
Business Model - continued
Government
Regulation - continued
FDA
Regulation - continued
FDA
Regulations will continue to change and evolve including the 2016-21st Century Cures Act which mandated the creation and revision
of policies and processes intended to speed patient access to new medical devices and codifying into law the FDA’s expedited
review program for breakthrough devices for which EsoGuard was so designated. In 2017, the Food and Drug Administration Reauthorization
Act (FDARA) which included improvements to premarket review times and investments in strategic initiatives like the National Evaluation
System for health Technology (NEST) and patient input and decoupling accessory classification from classification of the parent
device. We must continue to be aware of these changes that possibly impact our development and commercialization work. The Company
has a network of professionals with extensive experience in these matters that advise us on both the pre-approval/clearance requirements
as well as the post market surveillance compliance obligations.
Clinical
Trials of Medical Devices
One
or more clinical trials may be necessary to support an FDA submission. Clinical studies of unapproved or uncleared medical devices
or devices being studied for uses for which they are not approved or cleared (investigational devices) must be conducted in compliance
with FDA requirements. If an investigational device could pose a significant risk to patients, the sponsor company must submit
an Investigational Device Exemption, or IDE application to the FDA prior to initiation of the clinical study. An IDE application
must be supported by appropriate data, such as animal and laboratory test results, showing it is safe to test the device on humans
and the testing protocol is scientifically sound. The IDE will automatically become effective 30 days after receipt by the FDA
unless the FDA notifies the company the investigation may not begin. Clinical studies of investigational devices may not begin
until an institutional review board (“IRB”) has approved the study.
During
any study, the sponsor must comply with the FDA’s IDE requirements. These requirements include investigator selection, trial
monitoring, adverse event reporting, and record keeping. The investigators must obtain patient informed consent, rigorously follow
the investigational plan and study protocol, control the disposition of investigational devices, and comply with reporting and
record keeping requirements. We, the FDA, or the IRB at each institution at which a clinical trial is being conducted may suspend
a clinical trial at any time for various reasons, including a belief the subjects are being exposed to an unacceptable risk. During
the approval or clearance process, the FDA typically inspects the records relating to the conduct of one or more investigational
sites participating in the study supporting the application.
Post-Approval
Regulation of Medical Devices
After
a device is cleared or approved for marketing, numerous and pervasive regulatory requirements continue to apply. These include:
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the
FDA Quality Systems Regulation (QSR), which governs, among other things, how manufacturers design, test manufacture, exercise
quality control over, and document manufacturing of their products;
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labeling
and claims regulations, which prohibit the promotion of products for unapproved or “off-label” uses and impose
other restrictions on labeling; and
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the
Medical Device Reporting regulation, which requires reporting to the FDA of certain adverse experience associated with use
of the product.
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We
will continue to be subject to inspection by the FDA to determine our compliance with regulatory requirements.
Manufacturing
cGMP Requirements
Manufacturers
of medical devices are required to comply with FDA manufacturing requirements contained in the FDA’s current Good Manufacturing
Practices (cGMP) set forth in the quality system regulations promulgated under section 520 of the FDCA. cGMP regulations require,
among other things, quality control and quality assurance as well as the corresponding maintenance of records and documentation.
Failure to comply with statutory and regulatory requirements subjects a manufacturer to possible legal or regulatory action, including
the seizure or recall of products, injunctions, consent decrees placing significant restrictions on or suspending manufacturing
operations, and civil and criminal penalties. Adverse experiences with the product must be reported to the FDA and could result
in the imposition of marketing restrictions through labeling changes or in product withdrawal. Product approvals may be withdrawn
if compliance with regulatory requirements is not maintained or if problems concerning safety or efficacy of the product occur
following the approval. We expect to use contract manufacturers to manufacture our products for the foreseeable future we will
therefore be dependent on their compliance with these requirements to market our products. We work closely with our contract manufacturers
to assure our products are in strict compliance with these regulations.
Item
1. Business - Continued
Background
and Overview - continued
Our
Business Model - continued
Government
Regulation - continued
Other
U.S. Regulation
In
addition to FDA restrictions on marketing and promotion of drugs and devices, other federal and state laws restrict our business
practices. These laws include, without limitation, anti-kickback and false claims laws, data privacy and security laws, as well
as transparency laws regarding payments or other items of value provided to healthcare providers.
Because
of the breadth of these laws and the narrowness of the statutory exceptions and safe harbors available under such laws, it is
possible some of our business activities, including certain sales and marketing practices and the provision of certain items and
services to our customers, could be subject to challenge under one or more of such laws. If our operations are found to be in
violation of any of the health regulatory laws described above or any other laws that apply to us, we may be subject to penalties,
including potentially significant criminal and civil and administrative penalties, damages, fines, disgorgement, imprisonment,
exclusion from participation in government healthcare programs, contractual damages, reputational harm, administrative burdens,
diminished profits and future earnings, and the curtailment or restructuring of our operations, any of which could adversely affect
our ability to operate our business and our results of operations. To the extent any of our products are sold in a foreign country,
we may be subject to similar foreign laws, which may include, for instance, applicable post-marketing requirements, including
safety surveillance, anti-fraud and abuse laws and implementation of corporate compliance programs and reporting of payments or
transfers of value to healthcare professionals.
Physician
Payment Sunshine Act
There
has been a recent trend of increased federal and state regulation of payments and transfers of value provided to healthcare professionals
or entities. On February 8, 2013, the Centers for Medicare & Medicaid Services, or CMS, released its final rule implementing
section 6002 of the Affordable Care Act known as the Physician Payment Sunshine Act that imposes new annual reporting requirements
on device manufacturers for payments and other transfers of value provided by them, directly or indirectly, to physicians and
teaching hospitals, as well as ownership and investment interests held by physicians and their family members. A manufacturer’s
failure to submit timely, accurately and completely the required information for all payments, transfers of value or ownership
or investment interests may result in civil monetary penalties of up to an aggregate of $150,000 per year, and up to an
aggregate of $1 million per year for “knowing failures.” Manufacturers that produces at least one product
reimbursed by Medicare, Medicaid, or Children’s Health Insurance Program and (i) if the product is a drug or biological,
and it requires a prescription (or physician’s authorization) to administer; or (ii) if the product is a device or
medical supply, and it requires premarket approval or premarket notification by the FDA are required to comply with the Open Payments
(commonly referred to as the Sunshine Act) filing requirements under CMS. We currently do not have any products covered by Medicare,
Medicaid, or Children’s Health Insurance Program as none of our products have premarket approval or clearance notification.
We expect once our products receive regulatory clearance, we will be required to comply with the Sunshine Act provisions.
Certain
states, such as California and Connecticut, also mandate implementation of commercial compliance programs, and other states, such
as Massachusetts and Vermont, impose restrictions on device manufacturer marketing practices and require tracking and reporting
of gifts, compensation and other remuneration to healthcare professionals and entities. The shifting commercial compliance environment
and the need to build and maintain robust and expandable systems to comply with different compliance or reporting requirements
in multiple jurisdictions increase the possibility a healthcare company may fail to comply fully with one or more of these requirements.
Item
1. Business - Continued
Background
and Overview - continued
Our
Business Model - continued
Government
Regulation - continued
Other
U.S. Regulation - continued
Federal
Anti-Kickback Statute
The
Federal Anti-Kickback Statute prohibits, among other things, knowingly and willfully offering, paying, soliciting or receiving
any remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or covertly, to induce or in return
for purchasing, leasing, ordering or arranging for or recommending the purchase, lease or order of any good, facility, item or
service reimbursable, in whole or in part, under Medicare, Medicaid or other federal healthcare programs. The term “remuneration”
has been broadly interpreted to include anything of value. Although there are a number of statutory exceptions and regulatory
safe harbors protecting some common activities from prosecution, the exceptions and safe harbors are drawn narrowly. Practices
that involve remuneration that may be alleged to be intended to induce prescribing, purchases or recommendations may be subject
to scrutiny if they do not qualify for an exception or safe harbor. Failure to meet all of the requirements of a particular applicable
statutory exception or regulatory safe harbor does not make the conduct per se illegal under the Anti-Kickback Statute. Instead,
the legality of the arrangement will be evaluated on a case-by-case basis based on a cumulative review of all its facts and circumstances.
Several courts have interpreted the statute’s intent requirement to mean if any one purpose of an arrangement involving
remuneration is to induce referrals of federal healthcare covered business, the Anti-Kickback Statute has been violated.
Additionally,
the intent standard under the Anti-Kickback Statute was amended by the Patient Protection and Affordable Care Act of 2010, as
amended by the Health Care and Education Reconciliation Act of 2010, collectively the Affordable Care Act, to a stricter standard
such that a person or entity no longer needs to have actual knowledge of the statute or specific intent to violate it in order
to have committed a violation. In addition, the Affordable Care Act codified case law that a claim including items or services
resulting from a violation of the federal Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the federal
civil False Claims Act.
Federal
False Claims Act
The
False Claims Act prohibits, among other things, any person or entity from knowingly presenting, or causing to be presented, a
false or fraudulent claim for payment or approval to the federal government or knowingly making, using or causing to be made or
used a false record or statement material to a false or fraudulent claim to the federal government. A claim includes “any
request or demand” for money or property presented to the U.S. government. The False Claims Act also applies to false submissions
that cause the government to be paid less than the amount to which it is entitled, such as a rebate. Intent to deceive is not
required to establish liability under the False Claims Act. Several pharmaceutical, device and other healthcare companies have
been prosecuted under these laws for, among other things, allegedly providing free product to customers with the expectation the
customers would bill federal programs for the product. Other companies have been prosecuted for causing false claims to be submitted
because of the companies’ marketing of products for unapproved, and thus noncovered uses.
The
government may further prosecute, as a crime, conduct constituting a false claim under the False Claims Act. The False Claims
Act prohibits the making or presenting of a claim to the government knowing such claim to be false, fictitious, or fraudulent
and, unlike civil claims under the False Claims Act, requires proof of intent to submit a false claim.
The
Foreign Corrupt Practices Act
The
Foreign Corrupt Practices Act, or the FCPA, prohibits any U.S. individual or business from paying, offering, or authorizing payment
or offering of anything of value, directly or indirectly, to any foreign official, political party or candidate for the purpose
of influencing any act or decision of the foreign entity in order to assist the individual or business in obtaining or retaining
business. The FCPA also obligates companies whose securities are listed in the United States to comply with accounting provisions
requiring the company to maintain books and records that accurately and fairly reflect all transactions of the corporation, including
international subsidiaries, and to devise and maintain an adequate system of internal accounting controls for international operations.
Activities that violate the FCPA, even if they occur wholly outside the United States, can result in criminal and civil fines,
imprisonment, disgorgement, oversight, and debarment from government contracts.
Item
1. Business - Continued
Background
and Overview - continued
Our
Business Model - continued
Government
Regulation - continued
International
Regulation
In
order to market any product outside of the United States, we would need to comply with numerous and varying regulatory requirements
of other countries and jurisdictions regarding quality, safety and efficacy and governing, among other things, clinical trials,
marketing authorization, commercial sales and distribution of our products. We may be subject to regulations and product registration
requirements in the areas of product standards, packaging requirements, labeling requirements, import and export restrictions
and tariff regulations, duties and tax requirements. Whether or not we obtain FDA approval for a product, we would need to obtain
the necessary approvals by the comparable foreign regulatory authorities before we can commence clinical trials or marketing of
the product in foreign countries and jurisdictions. The time required to obtain clearance required by foreign countries may be
longer or shorter than required for FDA clearance, and requirements for licensing a product in a foreign country may differ significantly
from FDA requirements.
European
Union
The
European Union or EU will require a CE mark certification or approval in order to market our products in the various countries
of the European Union or other countries outside the United States. To obtain CE mark certification of our products, we will be
required to work with an accredited European notified body organization to determine the appropriate documents required to support
certification in accordance with existing medical device directive. The predictability of the length of time and cost associated
with such a CE mark may vary or may include lengthy clinical trials to support such a marking. Once the CE mark is obtained, we
may market our product in the countries of the EU. The new European Medical Device Regulation (EU MDR 2017/745) goes into effect
on May 26, 2020. The EU MDR imposes strict new requirements on medical device companies marketing their products in Europe. As
such, many device companies have been scrambling to renew existing CE certificates granted under the Medical Devices Directive
(MDD 93/42/EEC). Notified Bodies are now focused on their current customers and those customers’ current devices making
it virtually impossible to submit a new MDD application before May 2020.
European
Good Manufacturing Practices
In
the European Union, the manufacture of medical devices is subject to good manufacturing practice (GMP), as set forth in the relevant
laws and guidelines of the European Union and its member states. Compliance with GMP is generally assessed by the competent regulatory
authorities. Typically, quality system evaluation is performed by a Notified Body, which also recommends to the relevant competent
authority for the European Community CE Marking of a device. The Competent Authority may conduct inspections of relevant facilities,
and review manufacturing procedures, operating systems and personnel qualifications. In addition to obtaining approval for each
product, in many cases each device manufacturing facility must be audited on a periodic basis by the Notified Body. Further inspections
may occur over the life of the product.
Item
1. Business - Continued
Background
and Overview - continued
Employees
Currently,
we have fifteen full-time compensated employees, including our Chairman of the Board of Directors and Chief Executive Officer
(“CEO”), our President and Chief Financial Officer (“CFO”), and our Chief Medical Officer (“CMO”).
Our non-employee Vice Chairman is currently not a compensated employee of the Company, but is a compensated member of our board
of directors. No employees are covered by a collective bargaining agreement. We consider our relationship with our employees to
be good.
Corporate
History
We
were incorporated on June 26, 2014 in the State of Delaware, under the name PAXmed Inc. On April 19, 2015, we changed our name
to PAVmed Inc.
Our
principal business address is One Grand Central Place, Suite 4600, 60 East 42nd Street, New York, New York 10165, and our main
telephone number is (212) 949-4319.
Our
founders include three accomplished medical device entrepreneurs: Lishan Aklog M.D., Michael J. Glennon, and Brian J. deGuzman,
M.D. In 2007, they founded Pavilion Holdings Group (“PHG”), a medical device holding company with a vision to create
innovative single-product medical device companies using an outsourced business model focused on capital efficiency and speed
to market. Two years later PHG formed Pavilion Medical Innovations (“PMI”), a venture-backed medical device incubator.
Between 2008 and 2013, PHG and PMI founded four distinct, single-product medical device companies, three of which commercialized
products and one of which was acquired, each as discussed below.
Vortex
Medical Inc., founded in 2008 with $3.5 million in capital, created the AngioVac system, designed to remove large volume clots
and other undesirable intravascular material without the need for open surgery. It received its initial FDA clearance 16 months
after the company was founded. AngioVac was commercially launched in 2009 and the first AngioVac procedure was performed at Harvard’s
Brigham and Women’s Hospital later the same year. Vortex Medical marketed the AngioVac system across the United States until
it was acquired in October 2012 by AngioDynamics Inc. (NASDAQ: ANGO) for $55.0 million in guaranteed consideration. At the time
of its acquisition the company was cash-flow positive, carried no debt and did not require any additional capital beyond original
$3.5 million raised.
Saphena
Medical Inc., spun out of PMI in 2013 with $3.0 million in initial capital, created the VenaPax next-generation endoscopic vessel
harvest device for use during coronary artery bypass surgery, which received FDA clearance in 18 months after the company was
founded. VenaPax was first commercialized at Harvard’s Massachusetts General Hospital in late 2014. VenaPax is currently
being marketed across the United States.
Cruzar
Medsystems Inc., spun out of PMI in 2013 with $2.5 million in capital, created a novel peripheral chronic total occlusion (CTO)
device for use in peripheral arterial disease, which received its initial FDA 510(k) clearance in late 2015, and was first commercialized
in May 2016, and is currently being marketed across the United States.
PAVmed
Inc. was founded to adapt this model to a multi-product company with access to public capital markets. We believe this model allows
us to conceive, develop and commercialize our pipeline of medical device products using significantly less capital and time than
a typical medical device company, and provide a streamlined pathway to incorporate outside innovations.
Available
Information
We
make available free of charge through our website our Annual Report on Form 10-K, quarterly reports on Form 10-Q, current reports
on Form 8-K and amendments to those reports filed or furnished pursuant to Sections 13(a) and 15(d) of the Securities Exchange
Act of 1934, as amended, or the “Exchange Act.” We make these reports available through our website as soon as reasonably
practicable after we electronically file such reports with, or furnish such reports to the SEC. We also make available, free of
charge on our website, the reports filed with the SEC by our executive officers, directors and 10% stockholders pursuant to Section
16 under the Exchange Act as soon as reasonably practicable after copies of those filings are provided to us by those persons.
The public also may read and copy any materials we file with the SEC at the SEC’s Public Reference Room at 100 F Street,
NE., Washington, DC 20549, on official business days during the hours of 10 a.m. to 3 p.m. The public may obtain information on
the operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. The SEC also maintains an Internet site
(http://www.sec.gov) that contains reports, proxy and information statements, and other information regarding us that we file
electronically with the SEC.
Our
website address is http://www.pavmed.com. The content of our website is not incorporated by reference into this Annual Report
on Form 10-K, nor in any other report or document we file with the SEC, and any reference to our website are intended to be inactive
textual references only.
Item
1A, Risk Factors
The
following risk factors and other information included in this Annual Report on Form 10-K should be carefully considered. The risks
and uncertainties described below are not the only ones we face. Additional risks and uncertainties not presently known to us
or we presently deem less significant may also impair our business operations. If any of the following risks occur, our business,
financial condition, results of operations and future growth prospects could be materially and adversely affected.
Risks
Related to Financial Position and Capital Resources
We
have incurred operating losses since our inception and may not be able to achieve profitability.
We
have incurred net losses since our inception.
To
date, since our inception in June 2014, we have financed our operations principally through issuances of common stock, preferred
stock, warrants, and debt, in both private placements and underwritten public offerings of our securities. Our ability to generate
sufficient revenue from any of our products in development, and to transition to profitability and generate consistent positive
cash flows is dependent upon factors that may be outside of our control. We expect our operating expenses will continue to increase
as we continue to build our commercial infrastructure, develop, enhance and commercialize new products and incur additional operational
and reporting costs associated with being a public company. As a result, we expect to continue to incur operating losses for the
foreseeable future.
We
have concluded there is substantial doubt of our ability to continue as a going concern and our independent registered public
accounting firm’s report on our financial statements contains an explanatory paragraph describing our ability to continue
as a going concern.
In
our December 31, 2019 consolidated financial statements, we have concluded and stated our recurring losses from operations, recurring
cash flows used in operations, accumulated deficit, and the requirement to raise additional capital to support our operating and
capital expenditures, raise substantial doubt regarding our ability to continue as a going concern. Correspondingly, our independent
registered public accounting firm’s report on our consolidated financial statements also includes an explanatory paragraph
expressing substantial doubt about our ability to continue as a going concern. Our plans to address this going concern risk include,
pursuing additional offerings of debt and/or equity securities. The consolidated financial statements do not include any adjustments
might result from our inability to consummate such offerings or our ability to continue as a going concern. Moreover, there is
no assurance if we consummate additional offerings, we will raise sufficient proceeds in such offerings to pay our financial obligations
as they become due. These factors raise substantial doubt about our ability to continue as a going concern.
We
may need substantial additional funding and may be unable to raise capital when needed, which could force us to delay, reduce,
eliminate or abandon growth initiatives or product development programs.
We
intend to continue to make investments to support our business growth. Because we have not generated any revenue or cash flow
to date, we will require additional funds to:
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continue
our research and development;
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pursue clinical
trials;
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protect
our intellectual property rights or defend, in litigation or otherwise, any claims we infringe third-party patents or other
intellectual property rights;
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fund
our operations;
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deliver
our new products, if any such products receive regulatory clearance or approval for commercial sale;
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achieve
market acceptance of our products;
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establish
and expand our sales, marketing and distribution capabilities; and
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invest
in businesses, products and technologies, although we currently have no commitments or agreements relating to do so.
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If
we do not have, or are not able to obtain, sufficient funds, we may have to delay product development initiatives or license to
third parties the rights to commercialize products or technologies we would otherwise seek to market. We also may have to reduce
marketing, customer support or other resources devoted to our products.
Item
1A Risk Factors - continued
Risks
Associated with Our Business
Since
we have a limited operating history, and have not generated any revenues, you will have little basis upon which to evaluate our
ability to achieve our business objective.
Since
we have a limited operating history, and have not generated any revenues, you will have little basis upon which to evaluate our
ability to achieve our business objective. We are subject to all of the problems, expenses, delays and other risks inherent in
any new business, as well as problems inherent in establishing a name and business reputation.
The
markets in which we operate are highly competitive, and we may not be able to effectively compete against other providers of medical
devices, particularly those with greater resources.
We
face intense competition from companies with dominant market positions in the medical device industry. These competitors have
significantly greater financial, technical, marketing and other resources than we have and may be better able to:
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respond
to new technologies or technical standards;
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react
to changing customer requirements and expectations;
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acquire
other companies to gain new technologies or products may displace our products;
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manufacture,
market and sell products;
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acquire,
prosecute, enforce and defend patents and other intellectual property;
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devote
resources to the development, production, promotion, support and sale of products; and
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deliver
a broad range of competitive products at lower prices.
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We
expect competition in the markets in which we participate to continue to increase as existing competitors improve or expand their
product offerings.
Our
future performance will depend on the success of products we have not yet developed.
Technology
is an important component of our business and growth strategy, and our success depends on the development, implementation and
acceptance of our products. To date, only our EsoCheck and EsoGuard products have reached the marketing stage. Commitments to
develop new products must be made well in advance of any resulting sales, and technologies and standards may change during development,
potentially rendering our products outdated or uncompetitive before their introduction. Our ability to develop products to meet
evolving industry requirements and at prices acceptable to our customers will be significant factors in determining our competitiveness.
We may expend considerable funds and other resources on the development of our products without any guarantee these products will
be successful. If we are not successful in bringing one or more products to market, whether because we fail to address marketplace
demand, fail to develop viable technologies or otherwise, we may not generate any revenues and our results of operations could
be seriously harmed.
Our
products may never achieve market acceptance.
To
date, we have not generated any revenues. Our ability to generate revenues from product sales and to achieve profitability will
depend upon our ability to successfully commercialize our products. Because we only recently began to market our first products
for sale, we have no basis to predict whether any of our products will achieve market acceptance. A number of factors may limit
the market acceptance of any of our products, including:
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the
timing of regulatory approvals of our products and market entry compared to competitive products;
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the
effectiveness of our products, including any potential side effects, as compared to alternative treatments;
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the
rate of adoption of our products by hospitals, doctors and nurses and acceptance by the health care community;
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the
product labeling or product inserts required by regulatory authorities for each of our products;
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the
competitive features of our products, including price, as compared to other similar products;
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the
availability of insurance or other third-party reimbursement, such as Medicare, for patients using our products;
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the
extent and success of our marketing efforts and those of our collaborators; and
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unfavorable
publicity concerning our products or similar products.
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Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
Any
products we may develop may become subject to unfavorable pricing regulations, third-party reimbursement practices or healthcare
reform initiatives, thereby harming our business.
The
regulations that govern marketing approvals, pricing and reimbursement for new products vary widely from country to country. Some
countries require approval of the sale price of a product before it can be marketed. In many countries, the pricing review period
begins after marketing approval is granted. In some foreign markets, pricing remains subject to continuing governmental control
even after initial approval is granted. As a result, we might obtain regulatory approval for a product in a particular country,
but then be subject to price regulations that delay our commercial launch of the product and negatively impact the revenue we
are able to generate from the sale of the product in that country. Adverse pricing limitations may hinder our ability to recoup
our investment in one or more other products we may develop, even if our other products we may develop obtain regulatory approval.
Our
ability to commercialize any products we may develop successfully also will depend in part on the extent to which reimbursement
for these products and related treatments becomes available from government health administration authorities, private health
insurers and other organizations. Government authorities and third-party payors, such as private health insurers and health maintenance
organizations, decide which treatments they will pay for and establish reimbursement levels. A primary trend in the U.S. healthcare
industry and elsewhere is cost containment. Government authorities and these third-party payors have attempted to control costs
by limiting coverage and the amount of reimbursement for particular treatments. We cannot be sure reimbursement will be available
for any product we commercialize and, if reimbursement is available, what the level of reimbursement will be. Reimbursement may
impact the demand for, or the price of, any product for which we obtain marketing approval. If reimbursement is not available
or is available only to limited levels, we may not be able to successfully commercialize any product we successfully develop.
Moreover,
eligibility for reimbursement does not imply any product will be paid for in all cases or at a rate that covers our costs, including
research, development, manufacture, sale and distribution. Payment rates may vary according to the use of the product and the
clinical setting in which it is used, may be based on payments allowed for lower cost products that are already reimbursed and
may be incorporated into existing payments for other services. Net prices for products may be reduced by mandatory discounts or
rebates required by government healthcare programs or private payors and by any future relaxation of laws that presently restrict
imports of products from countries where they may be sold at lower prices than in the U.S. Third-party payors often rely upon
Medicare coverage policy and payment limitations in setting their own reimbursement policies. Our inability to promptly obtain
coverage and profitable payment rates from both government funded and private payors could have a material adverse effect on our
operating results, our ability to raise capital needed to commercialize products and our overall financial condition. To obtain
reimbursement or pricing approval in some countries, we may be required to conduct a clinical trial that compares the cost-effectiveness
of our product to other available therapies. Our business could be materially harmed if reimbursement of any products we may develop,
if any, is unavailable or limited in scope or amount or if pricing is set at unsatisfactory levels.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
Any
products we may develop may cause serious adverse side effects or even death or have other properties that could delay or prevent
their regulatory approval, limit the commercial desirability of an approved label or result in significant negative consequences
following any marketing approval.
The
risk of failure of clinical development is high. It is impossible to predict when or if any products we may develop will prove
safe enough to receive regulatory approval. Undesirable side effects caused by any products we may develop could cause us or regulatory
authorities to interrupt, delay or halt clinical trials. They could also result in a more restrictive label or the delay or denial
of regulatory approval by the FDA or other comparable foreign regulatory authority.
Additionally,
after receipt of marketing approval of any products we may develop, if we or others later identify undesirable side effects or
even deaths caused by such product, a number of potentially significant negative consequences could result, including:
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we
may be forced to recall such product and suspend the marketing of such product;
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regulatory
authorities may withdraw their approvals of such product;
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regulatory
authorities may require additional warnings on the label that could diminish the usage or otherwise limit the commercial success
of such products;
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the
FDA or other regulatory bodies may issue safety alerts, Dear Healthcare Provider letters, press releases or other communications
containing warnings about such product;
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the
FDA may require the establishment or modification of Risk Evaluation Mitigation Strategies or a comparable foreign regulatory
authority may require the establishment or modification of a similar strategy that may, for instance, restrict distribution
of our products and impose burdensome implementation requirements on us;
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we
may be required to change the way the product is administered or conduct additional clinical trials;
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we
could be sued and held liable for harm caused to subjects or patients;
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we
may be subject to litigation or product liability claims; and
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our
reputation may suffer.
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Any
of these events could prevent us from achieving or maintaining market acceptance of the particular product.
Product
liability lawsuits against us could cause us to incur substantial liabilities and to limit commercialization of any products that
we may develop.
We
face an inherent risk of product liability exposure related to the sale of any products we may develop. The marketing, sale and
use of any products we may develop could lead to the filing of product liability claims against us if someone alleges product
failures, product malfunctions, manufacturing flaws, or design defects, resulted in injury to patients. We may also be subject
to liability for a misunderstanding of, or inappropriate reliance upon, the information we provide. If we cannot successfully
defend ourselves against claims that any product, we may develop caused injuries, we may incur substantial liabilities. Regardless
of merit or eventual outcome, liability claims may result in:
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decreased
demand for our products;
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injury
to our reputation and significant negative media attention;
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withdrawal
of patients from clinical studies or cancellation of studies;
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significant
costs to defend the related litigation and distraction to our management team;
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substantial
monetary awards to patients;
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loss
of revenue; and
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the
inability to commercialize any products that we may develop.
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In
addition, insurance coverage is increasingly expensive. We may not be able to maintain insurance coverage at a reasonable cost
or in an amount adequate to satisfy any liability that may arise.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
We
may not be able to protect or enforce our intellectual property rights, which could impair our competitive position.
Our
success depends significantly on our ability to protect our rights to the patents, trademarks, trade secrets, copyrights and all
the other intellectual property rights used, or expected to be used, in our products. Protecting intellectual property rights
is costly and time consuming. We rely primarily on patent protection and trade secrets, as well as a combination of copyright
and trademark laws and nondisclosure and confidentiality agreements to protect our technology and intellectual property rights.
However, these legal means afford only limited protection and may not adequately protect our rights or permit us to gain or maintain
any competitive advantage. Despite our intellectual property rights practices, it may be possible for a third party to copy or
otherwise obtain and use our technology without authorization, develop similar technology independently or design around our patents.
We
cannot be assured that any of our pending patent applications will result in the issuance of a patent to us. The U.S. Patent and
Trademark Office, or PTO, may deny or require significant narrowing of claims in our pending patent applications, and patents
issued as a result of the pending patent applications, if any, may not provide us with significant commercial protection or be
issued in a form that is advantageous to us. We could also incur substantial costs in proceedings before the PTO. Patents that
may be issued to or licensed by us in the future may expire or may be challenged, invalidated or circumvented, which could limit
our ability to stop competitors from marketing related technologies. Upon expiration of our issued or licensed patents, we may
lose some of our rights to exclude others from making, using, selling or importing products using the technology based on the
expired patents. There is no assurance that competitors will not be able to design around our patents.
Further,
we may not be able to obtain patent protection or secure other intellectual property rights in all the countries in which we operate,
and under the laws of such countries, patents and other intellectual property rights may be unavailable or limited in scope. If
any of our patents fails to protect our technology, it would make it easier for our competitors to offer similar products. Our
trade secrets may be vulnerable to disclosure or misappropriation by employees, contractors and other persons. Any inability on
our part to adequately protect our intellectual property may have a material adverse effect on our business, financial condition
and results of operations.
We
also rely on unpatented proprietary technology. We cannot assure you that we can meaningfully protect all our rights in our unpatented
proprietary technology or that others will not independently develop substantially equivalent proprietary products or processes
or otherwise gain access to our unpatented proprietary technology. We seek to protect our know-how and other unpatented proprietary
technology, as trade secrets or otherwise, with confidentiality agreements and/or intellectual property assignment agreements
with our team members, independent distributors and consultants. However, such agreements may not be enforceable or may not provide
meaningful protection for our proprietary information in the event of unauthorized use or disclosure or other breaches of the
agreements or in the event that our competitors discover or independently develop similar or identical designs or other proprietary
information. Our trade secrets may be vulnerable to disclosure or misappropriation by employees, contractors and other persons.
In
addition, we intend to rely on the use of registered and common law trademarks with respect to the brand names of some of our
products. Common law trademarks provide less protection than registered trademarks. Loss of rights in our trademarks could adversely
affect our business, financial condition and results of operations.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
We
may be subject to intellectual property infringement claims by third parties which could be costly to defend, divert management’s
attention and resources, and may result in liability.
The
medical device industry is characterized by vigorous protection and pursuit of intellectual property rights. Companies in the
medical device industry have used intellectual property litigation to gain a competitive advantage in the marketplace. From time
to time, third parties may assert against us their patent, copyright, trademark and other intellectual property rights relating
to technologies that are important to our business. Searching for existing intellectual property rights may not reveal important
intellectual property and our competitors may also have filed for patent protection, which is not publicly-available information,
or claimed trademark rights that have not been revealed through our availability searches. We may be subject to claims that our
team members have disclosed, or that we have used, trade secrets or other proprietary information of our team members’ former
employers. Our efforts to identify and avoid infringing on third parties’ intellectual property rights may not always be
successful. Any claims that our products or processes infringe these rights, regardless of their merit or resolution, could be
costly, time consuming and may divert the efforts and attention of our management and technical personnel. In addition, we may
not prevail in such proceedings given the complex technical issues and inherent uncertainties in intellectual property litigation.
Any
claims of patent or other intellectual property infringement against us, even those without merit, could:
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increase
the cost of our products;
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be
expensive and/or time consuming to defend;
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result
in our being required to pay significant damages to third parties;
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force
us to cease making or selling products that incorporate the challenged intellectual property;
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require
us to redesign, reengineer or rebrand our products and technologies;
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require
us to enter into royalty or licensing agreements in order to obtain the right to use a third party’s intellectual property
on terms that may not be favorable or acceptable to us;
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require
us to develop alternative non-infringing technology, which could require significant effort and expense;
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require
us to indemnify third parties pursuant to contracts in which we have agreed to provide indemnification for intellectual property
infringement claims; and,
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result
in our customers or potential customers deferring or limiting their purchase or use of the affected products impacted by the
claims until the claims are resolved.
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Any
of the foregoing could affect our ability to compete or have a material adverse effect on our business, financial condition and
results of operations.
Competitors
may violate our intellectual property rights, and we may bring litigation to protect and enforce our intellectual property rights,
which may result in substantial expense and may divert our attention from implementing our business strategy.
We
believe that the success of our business depends, in significant part, on obtaining patent protection for our products and technologies,
defending our patents and preserving our trade secrets. Our failure to pursue any potential claim could result in the loss of
our proprietary rights and harm our position in the marketplace. Therefore, we may be forced to pursue litigation to enforce our
rights. Future litigation could result in significant costs and divert the attention of our management and key personnel from
our business operations and the implementation of our business strategy.
We
or our third-party manufacturers may not have the manufacturing and processing capacity to meet the production requirements of
clinical testing or consumer demand in a timely manner.
Our
capacity to conduct clinical trials and commercialize our products will depend in part on our ability to manufacture or provide
our products on a large scale, at a competitive cost and in accordance with regulatory requirements. We must establish and maintain
a commercial scale manufacturing process for all of our products to complete clinical trials. We or our third-party manufacturers
may encounter difficulties with these processes at any time that could result in delays in clinical trials, regulatory submissions
or the commercialization of products.
For
some of our products, we or our third-party manufacturers will need to have sufficient production and processing capacity in order
to conduct human clinical trials, to produce products for commercial sale at an acceptable cost. We have no experience in large-scale
product manufacturing, nor do we have the resources or facilities to manufacture most of our products on a commercial scale. We
cannot guarantee that we or our third-party manufacturers will be able to increase capacity in a timely or cost-effective manner,
or at all. Delays in providing or increasing production or processing capacity could result in additional expense or delays in
our clinical trials, regulatory submissions and commercialization of our products.
The
manufacturing processes for our products have not yet been tested at commercial levels, and it may not be possible to manufacture
or process these materials in a cost-effective manner.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
Our
business may suffer if we are unable to manage our growth.
If
we fail to effectively manage our growth, our ability to execute our business strategy could be impaired. The anticipated rapid
growth of our business may place a strain on our management, operations and financial systems. We need to improve existing systems
and controls or implement new systems and controls in response to anticipated growth.
We
will be dependent on third-party manufacturers since we will not initially directly manufacture our products.
Initially,
we will not directly manufacture our products and will rely on third parties to do so for us. If our manufacturing and distribution
agreements are not satisfactory, we may not be able to develop or commercialize products as planned. In addition, we may not be
able to contract with third parties to manufacture our products in an economical manner. Furthermore, third-party manufacturers
may not adequately perform their obligations, may delay clinical development or submission of products for regulatory approval
or otherwise may impair our competitive position. We may not be able to enter into or maintain relationships with manufacturers
that comply with good manufacturing practices. If a product manufacturer fails to comply with good manufacturing practices, we
could experience significant time delays or we may be unable to commercialize or continue to market the products. Changes in our
manufacturers could require costly new product testing and facility compliance inspections. In the United States, failure to comply
with good manufacturing practices or other applicable legal requirements can lead to federal seizure of violative products, injunctive
actions brought by the federal government, and potential criminal and civil liability on the part of a company and its officers
and employees. Because of these and other factors, we may not be able to replace our manufacturing capacity quickly or efficiently
in the event that our manufacturers are unable to manufacture our products at one or more of their facilities. As a result, the
sale and marketing of our products could be delayed or we could be forced to develop our own manufacturing capacity, which could
require substantial additional funds and personnel and compliance with extensive regulations.
We
may be dependent on the sales and marketing efforts of third parties if we choose not to develop an extensive sales and marketing
staff.
Initially,
we will depend on the efforts of third parties (including sales agents and distributors) to carry out the sales and marketing
of our products. We anticipate that each third party will control the amount and timing of resources generally devoted to these
activities. However, these third parties may not be able to generate demand for our products. In addition, there is a risk that
these third parties will develop products competitive to ours, which would likely decrease their incentive to vigorously promote
and sell our products. If we are unable to enter into co-promotion agreements or to arrange for third-party distribution of our
products, we will be required to expend time and resources to develop an effective internal sales force. However, it may not be
economical for us to market our own products or we may be unable to effectively market our products. Therefore, our business could
be harmed if we fail to enter into arrangements with third parties for the sales and marketing of our products or otherwise fail
to establish sufficient marketing capabilities.
Our
officers will allocate their time to other businesses thereby potentially limiting the amount of time they devote to our affairs.
This conflict of interest could have a negative impact on our operations.
Our
officers are not required to commit their full time to our affairs, which could create a conflict of interest when allocating
their time between our operations and their other commitments. We presently expect each of our employees to devote such amount
of time as they reasonably believe is necessary to our business. All of our officers are engaged in several other business endeavors
and are not obligated to devote any specific number of hours to our affairs. If our officers’ other business affairs require
them to devote more substantial amounts of time to such affairs, it could limit their ability to devote time to our affairs and
could have a negative impact on our operations. We cannot assure you these conflicts will be resolved in our favor.
Our
ability to be successful will be totally dependent upon the efforts of our key personnel.
Our
ability to successfully carry out our business plan is dependent upon the efforts of our key personnel. We cannot assure you that
any of our key personnel will remain with us for the immediate or foreseeable future. The unexpected loss of the services of our
key personnel could have a detrimental effect on us. We may also be unable to attract and retain additional key personnel in the
future. An inability to do so may impact our ability to continue and grow our operations.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
Our
officers have fiduciary obligations to other companies and, accordingly, may have conflicts of interest in determining to which
entity a particular business opportunity should be presented.
Certain
of our officers have fiduciary obligations to other companies engaged in medical device business activities, namely Saphena Medical,
Kaleidoscope Medical and Cruzar Medsystems. Accordingly, they may participate in transactions and have obligations that may be
in conflict or competition with our business. As a result, a potential business opportunity may be presented by certain members
of our management team to another entity prior to its presentation to us and we may not be afforded the opportunity to engage
in such a transaction.
Our
business, financial condition and results of operations could be adversely affected by the political and economic conditions of
the countries in which we conduct business.
Our
business, financial condition and results of operations could be adversely affected by the political and economic conditions of
the countries in which we conduct business. These factors include:
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challenges
associated with cultural differences, languages and distance;
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differences
in clinical practices, needs, products, modalities and preferences;
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longer
payment cycles in some countries;
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credit
risks of many kinds;
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legal
and regulatory differences and restrictions;
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currency
exchange fluctuations;
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foreign
exchange controls that might prevent us from repatriating cash earned in certain countries;
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political
and economic instability and export restrictions;
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variability
in sterilization requirements for multi-usage surgical devices;
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potential
adverse tax consequences;
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higher
cost associated with doing business internationally;
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challenges
in implementing educational programs required by our approach to doing business;
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negative
economic developments in economies around the world and the instability of governments, including the threat of war, terrorist
attacks, epidemic or civil unrest;
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adverse
changes in laws and governmental policies, especially those affecting trade and investment;
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pandemics,
such as the Ebola virus, the enterovirus and the avian flu, which may adversely affect our workforce as well as our local
suppliers and customers;
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import
or export licensing requirements imposed by governments;
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differing
labor standards;
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differing
levels of protection of intellectual property;
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the
threat that our operations or property could be subject to nationalization and expropriation;
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varying
practices of the regulatory, tax, judicial and administrative bodies in the jurisdictions where we operate; and
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potentially
burdensome taxation and changes in foreign tax.
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Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
Any
products we may develop may not be approved for sale in the U.S. or in any other country.
Our
only product for which we have obtained approval or clearance from the FDA or a comparable foreign regulatory authority is our
EsoCheck product. In certain limited circumstances, we also may market our products without such approval or clearance, as is
the case for the EsoGuard LDT. Generally, however, neither we nor any future collaboration partner can commercialize any products
we may develop in the U.S. or in any foreign country without first obtaining regulatory approval for the product from the FDA
or comparable foreign regulatory authorities. The approval route in the U.S. for any products we may develop may be either via
the PMA process, a de novo 510(k) pathway, or traditional 510(k). The PMA approval process is more complex, costly and
time consuming than the 510(k) process. Additional randomized, controlled clinical trials may be necessary to obtain approval.
The approval process may take several years to complete and may never be obtained. Before obtaining regulatory approvals for the
commercial sale of any product we may develop in the U.S., we must demonstrate with substantial evidence, gathered in preclinical
and well-controlled clinical studies, that the planned products are safe and effective for use for that target indication. We
may not conduct such a trial or may not successfully enroll or complete any such trial. Any products we may develop may not achieve
the required primary endpoint in the clinical trial and may not receive regulatory approval. We must also demonstrate that the
manufacturing facilities, processes and controls for any products we may develop are adequate. Moreover, obtaining regulatory
approval in one country for marketing of any products we may develop does not ensure we will be able to obtain regulatory approval
in other countries, while a failure or delay in obtaining regulatory approval in one country may have a negative effect on the
regulatory process in other countries.
Even
if we or any future collaboration partner were to successfully obtain a regulatory approval for any product we may develop, any
approval might contain significant limitations related to use restrictions for specified age groups, warnings, precautions or
contraindications, or may be subject to burdensome post-approval study or risk management requirements. If we are unable to obtain
regulatory approval for any products, we may develop in one or more jurisdictions, or any approval contains significant limitations,
we may not be able to obtain sufficient revenue to justify commercial launch. Also, any regulatory approval of a product, once
obtained, may be withdrawn. If we are unable to successfully obtain regulatory approval to sell any products we may develop in
the U.S. or other countries, our business, financial condition, results of operations and growth prospects could be adversely
affected.
Our
business may be adversely affected by health epidemics, including the recent coronavirus outbreak.
In
December 2019, an outbreak of a novel strain of coronavirus (“COVID-19”) originated in Wuhan, China and has since
spread to a number of other countries, including the U.S. On March 11, 2020, the World Health Organization characterized COVID-19
as a pandemic.
COVID-19
may have an adverse impact on our operations, supply chains and distribution systems or those of our contractors of our laboratory
partner, and increase our expenses, including as a result of impacts associated with preventive and precautionary measures
that are being taken, such restrictions on travel, quarantine polices and social distancing. For example, the ability of
our employees or those of our contractors or laboratory partner to work may be adversely affected. In addition, the spread
of COVID-19 has disrupted the United States’ healthcare and healthcare regulatory systems which could divert healthcare
resources away from, or materially delay FDA approval with respect to our products. Furthermore, our clinical trials may be affected
by the COVID-19 outbreak. Site initiation and patient enrollment may be delayed, for example, due to prioritization of hospital
resources toward the COVID-19 outbreak, travel restrictions imposed by governments, and the inability to access sites for initiation
and monitoring. COVID-19 also may have an adverse impact on the economies and financial markets of many countries, resulting in
an economic downturn that could affect demand for our product candidates, if approved, and impact our operating results. Any of
the foregoing could harm our business and we cannot anticipate all of the ways in which health epidemics such as COVID-19 could
adversely impact our business. Although we are continuing to monitor and assess the effects of the COVID-19 pandemic on our business,
the ultimate impact of the COVID-19 outbreak or a similar health epidemic is highly uncertain and subject to change.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
Failure
in our information technology or storage systems could significantly disrupt our operations and our research and development efforts,
which could adversely impact our revenues, as well as our research, development and commercialization efforts.
Our
ability to execute our business strategy depends, in part, on the continued and uninterrupted performance of our information technology
(“IT”) systems that support our operations and our research and development efforts, and those IT systems within the
control of our contract manufacturers and contract laboratories. The integrity and protection of our own data, and that of our
customers and employees, is critical to our business. The regulatory environment governing information, security and privacy laws
is increasingly demanding and continues to evolve. IT systems are vulnerable to damage from a variety of sources, including telecommunications
or network failures, malicious human acts and natural disasters. Moreover, despite network security and back-up measures, some
of our servers are potentially vulnerable to physical or electronic break-ins, computer viruses and similar disruptive problems.
Despite the precautionary measures we have taken to prevent unanticipated problems that could affect our IT systems, and the precautionary
measures taken by our contract parties, sustained or repeated system failures that interrupt our ability to generate and maintain
data, could adversely affect our ability to operate our business. Furthermore, any breach in our IT systems could lead to the
unauthorized access, disclosure and use of non-public information, including protected health information, which is protected
by HIPAA and other laws. Any such access, disclosure, or other loss of information could result in legal claims or proceedings,
liability under laws that protect the privacy of personal information, and damage to our reputation.
System
upgrades, enhancements and replacements, as well as new systems, are required from time to time, and require significant expenditures
and allocation of valuable employee resources. Delays in integration or disruptions to our business from implementation of these
new or upgraded systems could have a material adverse impact on our financial condition and operating results. There can be no
assurance that our process of improving existing systems, developing new systems to support our expanding operations, integrating
new systems, protecting confidential patient information, and improving service levels will not be delayed or that additional
systems issues will not arise in the future. Failure to adequately protect and maintain the integrity of our information systems
issues and data may result in a material adverse effect on our financial position, results of operations and cash flows.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
Risks
Related to Government Regulation
The
regulatory approval process is expensive, time consuming and uncertain, and may prevent us or our partners from obtaining approval
for the commercialization of any products we may develop. Approval of products in the U.S. or other territories may require that
we, or a partner, conduct randomized, controlled clinical trials.
For
many of the products we are currently developing, the regulatory
pathway in the U.S. for approval of the product has not been determined. However, it is possible the FDA will require us to file
for approval via the PMA pathway for one or more of our planned products. In this case, the FDA is likely to require that randomized,
controlled clinical trials be conducted before an application for approval can be filed. These are typically expensive and time
consuming and require substantial commitment of financial and personnel resources from the sponsoring company. These clinical
trials also entail significant risk, and the resulting data may not be sufficient to support approval by the FDA or other regulatory
bodies.
Furthermore,
regulatory approval of a PMA or a 510(k) pathway is not guaranteed, and the filing and approval process itself is expensive and
may take several years. The FDA also has substantial discretion in the approval process. Despite the time and expense exerted,
failure may occur at any stage, and we could encounter problems that cause us to abandon or repeat clinical studies. The FDA can
delay, limit, or deny approval of a future product for many reasons, including but not limited to:
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a
future product may not be deemed to be safe and effective;
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FDA
officials may not find the data from clinical and preclinical studies sufficient;
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the
FDA may not approve our or our third-party manufacturer’s processes or facilities; or
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the
FDA may change its approval policies or adopt new regulations.
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If
any products we may develop fail to demonstrate safety and efficacy in further clinical studies may be required, or do not gain
regulatory approval, our business and results of operations will be materially and adversely harmed.
Even
if we receive regulatory approval for any product we may develop, we will be subject to ongoing regulatory obligations and continued
regulatory review, which may result in significant additional expense and subject us to penalties if we fail to comply with applicable
regulatory requirements.
Once
regulatory approval has been obtained, the approved product and its manufacturer are subject to continual review by the FDA or
non-U.S. regulatory authorities. Our regulatory approval for any products we may develop may be subject to limitations on the
indicated uses for which the product may be marketed. Future approvals may contain requirements for potentially costly post-marketing
follow-up studies to monitor the safety and efficacy of the approved product. In addition, we are subject to extensive and ongoing
regulatory requirements by the FDA and other regulatory authorities with regard to the labeling, packaging, adverse event reporting,
storage, advertising, promotion and recordkeeping for our products. In addition, we are required to comply with cGMP regulations
regarding the manufacture of any products we may develop, which include requirements related to quality control and quality assurance
as well as the corresponding maintenance of records and documentation. Further, regulatory authorities must approve these manufacturing
facilities before they can be used to manufacture drug products, and these facilities are subject to continual review and periodic
inspections by the FDA and other regulatory authorities for compliance with cGMP regulations. If we or a third party discover
previously unknown problems with a product, such as adverse events of unanticipated severity or frequency, or problems with the
facility where the product is manufactured, a regulatory authority may impose restrictions on that product, the manufacturer or
us, including requiring withdrawal of the product from the market or suspension of manufacturing.
Failure
to obtain regulatory approvals in foreign jurisdictions will prevent us from marketing our products internationally.
We
intend to seek distribution and marketing partners for one or more of the products we may develop in foreign countries. The approval
procedures vary among countries and can involve additional clinical testing, and the time required to obtain approval may differ
from that required to obtain FDA approval. Moreover, clinical studies or manufacturing processes conducted in one country may
not be accepted by regulatory authorities in other countries. Approval by the FDA does not ensure approval by regulatory authorities
in other countries, and approval by one or more foreign regulatory authorities does not ensure approval by regulatory authorities
in other foreign countries or by the FDA. However, a failure or delay in obtaining regulatory approval in one country may have
a negative effect on the regulatory process in others. The foreign regulatory approval process may include all of the risks associated
with obtaining FDA approval. We may not obtain foreign regulatory approvals on a timely basis, if at all. We may not be able to
file for regulatory approvals and even if we file, we may not receive necessary approvals to commercialize our products in any
market.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
Healthcare
reform measures could hinder or prevent our products’ commercial success.
In
the U.S., there have been, and we expect there will continue to be, a number of legislative and regulatory changes to the healthcare
system in ways that could affect our future revenue and profitability and the future revenue and profitability of our potential
customers. Federal and state lawmakers regularly propose and, at times, enact legislation that could result in significant changes
to the healthcare system, some of which are intended to contain or reduce the costs of medical products and services. For example,
one of the most significant healthcare reform measures in decades, the PPACA, was enacted in 2010. The PPACA contains a number
of provisions, including those governing enrollment in federal healthcare programs, reimbursement changes and fraud and abuse
measures, all of which will impact existing government healthcare programs and will result in the development of new programs.
The PPACA, among other things, could result in the imposition of injunctions.
While
the U.S. Supreme Court upheld the constitutionality of most elements of the PPACA in June 2012, other legal challenges are still
pending final adjudication in several jurisdictions. In addition, Congress has also proposed a number of legislative initiatives,
including possible repeal of the PPACA. For instance, in December 2019, the 2.3% tax on sales of medical devices was repealed.
At this time, it remains unclear whether there will be any changes made to the PPACA, whether to certain provisions or its entirety.
We cannot assure you that the PPACA, as currently enacted or as amended in the future, will not adversely affect our business
and financial results and we cannot predict how future federal or state legislative or administrative changes relating to healthcare
reform will affect our business.
In
addition, other legislative changes have been proposed and adopted since the PPACA was enacted. For example, the Budget Control
Act of 2011, among other things, created the Joint Select Committee on Deficit Reduction to recommend proposals for spending reductions
to Congress. The Joint Select Committee did not achieve a targeted deficit reduction of at least $1.2 trillion for the years 2013
through 2021, which triggered the legislation’s automatic reduction to several government programs, including aggregate
reductions to Medicare payments to providers of up to 2.0% per fiscal year, starting in 2013. In January 2013, President Obama
signed into law the American Taxpayer Relief Act of 2012, or the ATRA, which delayed for another two months the budget cuts mandated
by the sequestration provisions of the Budget Control Act of 2011. The ATRA, among other things, also reduced Medicare payments
to several providers, including hospitals, and increased the statute of limitations period for the government to recover overpayments
to providers from three to five years. In March 2013, President Obama signed an executive order implementing sequestration, and
in April 2013, the 2.0% Medicare reductions went into effect. We cannot predict whether any additional legislative changes will
affect our business.
There
likely will continue to be legislative and regulatory proposals at the federal and state levels directed at containing or lowering
the cost of health care. We cannot predict the initiatives that may be adopted in the future or their full impact. The continuing
efforts of the government, insurance companies, managed care organizations and other payors of healthcare services to contain
or reduce costs of health care may adversely affect:
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our
ability to set a price that we believe is fair for our products;
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our
ability to generate revenue and achieve or maintain profitability; and
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the
availability of capital.
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Further,
changes in regulatory requirements and guidance may occur, both in the United States and in foreign countries, and we may need
to amend clinical study protocols to reflect these changes. Amendments may require us to resubmit our clinical study protocols
to IRB’s for reexamination, which may impact the costs, timing or successful completion of a clinical study. In light of
widely publicized events concerning the safety risk of certain drug and medical device products, regulatory authorities, members
of Congress, the Governmental Accounting Office, medical professionals and the general public have raised concerns about potential
safety issues. These events have resulted in the recall and withdrawal of medical device products, revisions to product labeling
that further limit use of products and establishment of risk management programs that may, for instance, restrict distribution
of certain products or require safety surveillance or patient education. The increased attention to safety issues may result in
a more cautious approach by the FDA or other regulatory authorities to clinical studies and the drug approval process. Data from
clinical studies may receive greater scrutiny with respect to safety, which may make the FDA or other regulatory authorities more
likely to terminate or suspend clinical studies before completion or require longer or additional clinical studies that may result
in substantial additional expense and a delay or failure in obtaining approval or approval for a more limited indication than
originally sought.
Given
the serious public health risks of high profile adverse safety events with certain products, the FDA or other regulatory authorities
may require, as a condition of approval, costly risk evaluation and mitigation strategies, which may include safety surveillance,
restricted distribution and use, patient education, enhanced labeling, special packaging or labeling, expedited reporting of certain
adverse events, preapproval of promotional materials and restrictions on direct-to-consumer advertising.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
If
we fail to comply with healthcare regulations, we could face substantial penalties and our business, operations and financial
condition could be adversely affected.
Even
though we do not and will not control referrals of healthcare services or bill directly to Medicare, Medicaid or other third-party
payors, certain federal and state healthcare laws and regulations pertaining to fraud and abuse and patients’ rights are
and will be applicable to our business. We could be subject to healthcare fraud and abuse and patient privacy regulation by both
the federal government and the states in which we conduct our business. The regulations that may affect our ability to operate
include, without limitation:
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the
federal healthcare program Anti-Kickback Statute, which prohibits, among other things, any person from knowingly and willfully
offering, soliciting, receiving or providing remuneration, directly or indirectly, in exchange for or to induce either the
referral of an individual for, or the purchase, order or recommendation of, any good or service for which payment may be made
under federal healthcare programs, such as the Medicare and Medicaid programs;
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the
U.S. Foreign Corrupt Practices Act, or FCPA, which prohibits payments or the provision of anything of value to foreign officials
for the purpose of obtaining or keeping business;
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the
federal False Claims Act, or FCA, which prohibits, among other things, individuals or entities from knowingly presenting,
or causing to be presented, false claims, or knowingly using false statements, to obtain payment from the federal government,
and which may apply to entities like us which provide coding and billing advice to customers;
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federal
criminal laws that prohibit executing a scheme to defraud any healthcare benefit program or making false statements relating
to healthcare matters;
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the
federal transparency requirements under the Health Care Reform Law requires manufacturers of drugs, devices, biologics and
medical supplies to report to the Department of Health and Human Services information related to physician payments and other
transfers of value and physician ownership and investment interests;
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the
federal Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic
and Clinical Health Act, which governs the conduct of certain electronic healthcare transactions and protects the security
and privacy of protected health information; and
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state
law equivalents of each of the above federal laws, such as anti-kickback and false claims laws which may apply to items or
services reimbursed by any third-party payor, including commercial insurers.
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The
PPACA, among other things, amends the intent requirement of the Federal Anti-Kickback Statute and criminal healthcare fraud statutes.
A person or entity no longer needs to have actual knowledge of this statute or specific intent to violate it. In addition, the
PPACA provides that the government may assert that a claim including items or services resulting from a violation of the Federal
Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the FCA.
If
our operations are found to be in violation of any of the laws described above or any other governmental regulations that apply
to us, we may be subject to penalties, including civil and criminal penalties, damages, fines and the curtailment or restructuring
of our operations. Any penalties, damages, fines, curtailment or restructuring of our operations could adversely affect our ability
to operate our business and our financial results. Any action against us for violation of these laws, even if we successfully
defend against it, could cause us to incur significant legal expenses and divert our management’s attention from the operation
of our business. Moreover, achieving and sustaining compliance with applicable federal and state privacy, security and fraud laws
may prove costly.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
If
required, clinical trials necessary to support a 510(k) notice or PMA application will be expensive and will require the enrollment
of large numbers of patients, and suitable patients may be difficult to identify and recruit. Delays or failures in our clinical
trials will prevent us from commercializing any modified or new products and will adversely affect our business, operating results
and prospects.
Initiating
and completing clinical trials necessary to support a 510(k) notice or a PMA application will be time-consuming and expensive
and the outcome uncertain. Moreover, the results of early clinical trials are not necessarily predictive of future results, and
any product the Company advances into clinical trials may not have favorable results in early or later clinical trials.
Conducting
successful clinical studies will require the enrollment of large numbers of patients, and suitable patients may be difficult to
identify and recruit. Patient enrollment in clinical trials and completion of patient participation and follow-up depend on many
factors, including the size of the patient population, the nature of the trial protocol, the attractiveness of, or the discomforts
and risks associated with, the treatments received by patients enrolled as subjects, the availability of appropriate clinical
trial investigators, support staff, and proximity of patients to clinical sites and ability to comply with the eligibility and
exclusion criteria for participation in the clinical trial and patient compliance. For example, patients may be discouraged from
enrolling in our clinical trials if the trial protocol requires them to undergo extensive post-treatment procedures or follow-up
to assess the safety and effectiveness of our products or if they determine that the treatments received under the trial protocols
are not attractive or involve unacceptable risks or discomforts. Patients may also not participate in our clinical trials if they
choose to participate in contemporaneous clinical trials of competitive products. In addition, patients participating in clinical
trials may die before completion of the trial or suffer adverse medical events unrelated to investigational products.
Development
of sufficient and appropriate clinical protocols to demonstrate safety and efficacy may be required and the Company may not adequately
develop such protocols to support clearance and approval. Further, the FDA may require the Company to submit data on a greater
number of patients than it originally anticipated and/or for a longer follow-up period or change the data collection requirements
or data analysis for any clinical trials. Delays in patient enrollment or failure of patients to continue to participate in a
clinical trial may cause an increase in costs and delays in the approval and attempted commercialization of our products or result
in the failure of the clinical trial. The FDA may not consider our data adequate to demonstrate safety and efficacy. Such increased
costs and delays or failures could adversely affect our business, operating results and prospects.
The
results of the Company’s clinical trials may not support our product candidate claims or may result in the discovery of
adverse side effects.
Even
if any of the Company’s clinical trials are completed as planned, it cannot be certain that study results will support product
candidate claims or that the FDA or foreign regulatory authorities will agree with our conclusions regarding them. Success in
pre-clinical evaluation and early clinical trials does not ensure that later clinical trials will be successful, and we cannot
be sure that the later trials will replicate the results of prior trials and pre-clinical studies. The clinical trial process
may fail to demonstrate that our product candidates are safe and effective for the proposed indicated uses, which could cause
us to abandon a product candidate and may delay development of others. Any delay or termination of our clinical trials will delay
the filing of our product submissions and, ultimately, our ability to commercialize our product candidates and generate revenues.
It is also possible that patients enrolled in clinical trials will experience adverse side effects that are not currently part
of the product candidate’s profile.
The
Company’s medical products may in the future be subject to product recalls that could harm its reputation, business and
financial results.
The
FDA has the authority to require the recall of commercialized medical device products in the event of material deficiencies or
defects in design or manufacture. In the case of the FDA, the authority to require a recall must be based on an FDA finding that
there is a reasonable probability that the device would cause serious injury or death. Manufacturers may, under their own initiative,
recall a product if any material deficiency in a device is found. A government-mandated or voluntary recall by the Company or
one of its distributors could occur as a result of component failures, manufacturing errors, design or labeling defects or other
deficiencies and issues. Recalls of any of the Company’s products would divert managerial and financial resources and have
an adverse effect on its financial condition and results of operations. The FDA requires that certain classifications of recalls
be reported to the FDA within ten (10) working days after the recall is initiated. Companies are required to maintain certain
records of recalls, even if they are not reportable to the FDA. The Company may initiate voluntary recalls involving its products
in the future that the Company determines do not require notification of the FDA. If the FDA disagrees with the Company’s
determinations, they could require the Company to report those actions as recalls. A future recall announcement could harm the
Company’s reputation with customers and negatively affect its sales. In addition, the FDA could take enforcement action
for failing to report the recalls when they were conducted. No recalls of the Company’s medical products have been reported
to the FDA.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
If
the Company’s medical products cause or contribute to a death or a serious injury, or malfunction in certain ways, we will
be subject to medical device reporting regulations, which can result in voluntary corrective actions or agency enforcement actions.
Under
the FDA medical device reporting regulations, medical device manufacturers are required to report to the FDA information that
a device has or may have caused or contributed to a death or serious injury or has malfunctioned in a way that would likely cause
or contribute to death or serious injury if the malfunction of the device or one of our similar devices were to recur. If the
Company fails to report these events to the FDA within the required timeframes, or at all, the FDA could take enforcement action
against the Company. Any such adverse event involving its products also could result in future voluntary corrective actions, such
as recalls or customer notifications, or agency action, such as inspection or enforcement action. Any corrective action, whether
voluntary or involuntary, as well as defending ourselves in a lawsuit, will require the dedication of the Company’s time
and capital, distract management from operating our business, and may harm its reputation and financial results.
If
the effectiveness and safety of the Company’s devices are not supported by long-term data, the Company’s future revenues
could decline.
The
Company’s products may not be accepted in the market if the Company does not produce clinical data supported by the independent
efforts of clinicians, and if that data indicates that treatment with the Company’s products does not provide patients with
sustained benefits or that treatment with the Company’s products is less effective or less safe than the Company’s
current data suggests, the Company’s future revenues could decline. In addition, the FDA could then bring legal or regulatory
enforcement actions against the Company and/or its products including, but not limited to, recalls or requirements for pre-market
510(k) authorizations. The Company can give no assurance that its data will be substantiated in studies involving more patients.
In such a case, the Company may never achieve significant revenues or profitability.
If
the Company is found to be promoting the use of its devices for unapproved or “off-label” uses or engaging in other
noncompliant activities, the Company may be subject to recalls, seizures, fines, penalties, injunctions, adverse publicity, prosecution,
or other adverse actions, resulting in damage to its reputation and business.
The
Company’s labeling, advertising, promotional materials and user training materials must comply with the FDA and other applicable
laws and regulations, including the prohibition of the promotion of a medical device for a use that has not been cleared or approved
by the FDA. Obtaining 510(k) clearance or PMA approval only permits the Company to promote its products for the uses specifically
cleared by the FDA. Use of a device outside its cleared or approved indications is known as “off-label” use. Physicians
and consumers may use the Company’s products off-label because the FDA does not restrict or regulate a physician’s
choice of treatment within the practice of medicine nor is there oversight on patient use of over-the-counter devices. Although
the Company may request additional cleared indications for our current products, the FDA may deny those requests, require additional
expensive clinical data to support any additional indications or impose limitations on the intended use of any cleared product
as a condition of clearance. Even if regulatory clearance or approval of a product is granted, such clearance or approval may
be subject to limitations on the intended uses for which the product may be marketed and reduce our potential to successfully
commercialize the product and generate revenue from the product.
If
the FDA determines that the Company’s labeling, advertising, promotional materials, or user training materials, or representations
made by Company personnel, include the promotion of an off-label use for the device, or that the Company has made false or misleading
or inadequately substantiated promotional claims, or claims that could potentially change the regulatory status of the product,
the agency could take the position that these materials have misbranded the Company’s devices and request that the Company
modifies its labeling, advertising, or user training or promotional materials and/or subject the Company to regulatory or legal
enforcement actions, including the issuance of an Untitled Letter or a Warning Letter, injunction, seizure, recall, adverse publicity,
civil penalties, criminal penalties, or other adverse actions. It is also possible that other federal, state, or foreign enforcement
authorities might take action if they consider the Company’s labeling, advertising, promotional, or user training materials
to constitute promotion of an unapproved use, which could result in significant fines, penalties, or other adverse actions under
other statutory authorities, such as laws prohibiting false claims for reimbursement. In that event, we would be subject to extensive
fines and penalties and the Company’s reputation could be damaged and adoption of the products would be impaired. Although
the Company intends to refrain from statements that could be considered off-label promotion of its products, the FDA or another
regulatory agency could disagree and conclude that the Company has engaged in off-label promotion. For example, the Company has
made statements regarding some of its devices that the FDA may view as off-label promotion. In addition, any such off-label use
of the Company’s products may increase the risk of injury to patients, and, in turn, the risk of product liability claims,
and such claims are expensive to defend and could divert the Company’s management’s attention and result in substantial
damage awards against the Company.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
The
Company may be subject, directly or indirectly, to federal and state healthcare fraud and abuse laws and regulations and could
face substantial penalties if the Company is unable to fully comply with such laws.
While
the Company does not control referrals of healthcare services or bill directly to Medicare, Medicaid or other third-party payors,
many healthcare laws and regulations apply to the Company’s business. For example, the Company could be subject to healthcare
fraud and abuse and patient privacy regulation and enforcement by both the federal government and the states in which the Company
intends to conduct its business. The healthcare laws and regulations that may affect the Company’s ability to operate include:
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the
federal healthcare programs’ Anti-Kickback Law, which prohibits, among other things, persons or entities from soliciting,
receiving, offering or providing remuneration, directly or indirectly, in return for or to induce either the referral of an
individual for, or the purchase order or recommendation of, any item or service for which payment may be made under a federal
healthcare program such as the Medicare and Medicaid programs;
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federal
false claims laws which prohibit, among other things, individuals or entities from knowingly presenting, or causing to be
presented, claims for payment from Medicare, Medicaid, or other third-party payors that are false or fraudulent, or are for
items or services not provided as claimed and which may apply to entities like the Company to the extent that the Company’s
interactions with customers may affect their billing or coding practices;
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the
federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which established new federal crimes for knowingly
and willfully executing a scheme to defraud any healthcare benefit program or making false statements in connection with the
delivery of or payment for healthcare benefits, items or services, as well as leading to regulations imposing certain requirements
relating to the privacy, security and transmission of individually identifiable health information; and
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state
law equivalents of each of the above federal laws, such as anti-kickback and false claims laws which may apply to items or
services reimbursed by any third-party payor, including commercial insurers, and state laws governing the privacy of health
information in certain circumstances, many of which differ from each other in significant ways and often are not preempted
by HIPAA, thus complicating compliance efforts.
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Recently,
the medical device industry has been under heightened scrutiny as the subject of government investigations and regulatory or legal
enforcement actions involving manufacturers who allegedly offered unlawful inducements to potential or existing customers in an
attempt to procure their business, including arrangements with physician consultants. If the Company’s operations or arrangements
are found to be in violation of any of the laws described above or any other governmental regulations that apply to the Company,
the Company may be subject to penalties, including civil and criminal penalties, damages, fines, exclusion from the Medicare and
Medicaid programs and the curtailment or restructuring of its operations. Any penalties, damages, fines, exclusions, curtailment
or restructuring of the Company’s operations could adversely affect its ability to operate its business and its financial
results. The risk of the Company being found in violation of these laws is increased by the fact that many of these laws are broad
and their provisions are open to a variety of interpretations. Any action against the Company for violation of these laws, even
if the Company successfully defends against that action and the underlying alleged violations, could cause the Company to incur
significant legal expenses and divert its management’s attention from the operation of its business. If the physicians or
other providers or entities with whom the Company does business are found to be non-compliant with applicable laws, they may be
subject to sanctions, which could also have a negative impact on the Company’s business.
Item
1A Risk Factors - continued
Risks
Associated with Our Business - continued
The
Company or its subsidiaries’ failure to obtain or maintain necessary FDA clearances or approvals, or equivalents thereof
in the U.S. and relevant foreign markets, could hurt our ability to distribute and market our products.
In
both the United States and foreign markets, the Company and its subsidiaries are affected by extensive laws, governmental regulations,
administrative determinations, court decisions and similar constraints. Such laws, regulations and other constraints may exist
at the federal, state or local levels in the United States and at analogous levels of government in foreign jurisdictions.
For
example, as discussed above, certain of the Company’s planned product candidates may fall under the regulatory purview
of various centers at the FDA and in other countries by similar health and regulatory authorities. Each medical device that
the Company wishes to market in the U.S. must first receive either 510(k) clearance or premarket approval from the FDA unless
an exemption applies. Either process can be lengthy and expensive. The FDA’s 510(k) clearance process may take from three
to twelve months, or longer, and may or may not require human clinical data. The premarket approval process is much costlier and
lengthier. It may take from eleven months to three years, or even longer, and will likely require significant supporting human
clinical data. Delays in obtaining regulatory clearance or approval could adversely affect the Company’s revenues and profitability.
Although the Company has obtained 510(k) clearance for EsoCheck, this clearance may be subject to revocation if post-marketing
data demonstrates safety issues or lack of effectiveness. Similar clearance processes may apply in foreign countries. Further,
more stringent regulatory requirements or safety and quality standards may be issued in the future with an adverse effect on the
Company’s business.
In
addition, the formulation, manufacturing, packaging, labeling, distribution, importation, sale and storage of the Company’s
and its subsidiaries’ products are subject to extensive regulation by various federal agencies, including, but not limited
to, the FDA, the FTC, State Attorneys General in the United States, the Ministry of Health, Labor and Welfare in Japan, as well
as by various other federal, state, local and international regulatory authorities in the countries in which its products are
manufactured, distributed or sold. If the Company or its manufacturers fail to comply with those regulations, the Company and
its subsidiaries could become subject to significant penalties or claims, which could harm its results of operations or its ability
to conduct its business. In addition, the adoption of new regulations or changes in the interpretations of existing regulations
may result in significant compliance costs or discontinuation of product sales and may impair the marketing of its products, resulting
in significant loss of net sales. The Company’s failure to comply with federal or state regulations, or with regulations
in foreign markets that cover its product claims and advertising, including direct claims and advertising by the Company or its
subsidiaries, may result in enforcement actions and imposition of penalties or otherwise harm the distribution and sale of its
products. Further, the Company and its subsidiaries’ businesses are subject to laws governing our accounting, tax and import
and export activities. Failure to comply with these requirements could result in legal and/or financial consequences that might
adversely affect its sales and profitability.
Item
1A Risk Factors - continued
Risks
Associated with Ownership of Our Common Stock
We
may issue shares of our common and /or preferred stock in the future which could reduce the equity interest of our stockholders
and might cause a change in control of our ownership.
Our
certificate of incorporation authorizes the issuance of up to 100,000,000 shares of common stock, par value $.001 per share, and
20,000,000 shares of preferred stock, par value $.001 per share. In addition, pursuant to the November 2019 SPA, we are
required to seek stockholder approval to increase the number of shares of our common stock we are authorized to issue to 150,000,000
shares. We may issue a substantial number of additional shares of our common stock or preferred stock, or a combination of common
and preferred stock, to raise additional funds or in connection with any strategic acquisition. The issuance of additional shares
of our common stock or any number of shares of our preferred stock:
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may
significantly reduce the equity interest of investors;
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may
subordinate the rights of holders of common stock if preferred stock is issued with rights senior to those afforded to our
common stockholders;
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may
cause a change in control if a substantial number of our shares of common stock are issued, which may affect, among other
things, our ability to use our net operating loss carryforwards, if any, and most likely also result in the resignation or
removal of some or all of our present officers and directors; and
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may
adversely affect prevailing market prices for our common stock.
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Item
1A Risk Factors - continued
Risks
Associated with Ownership of Our Common Stock - continued
We
have incurred substantial indebtedness, and may incur additional indebtedness in the future, which could adversely affect our
liquidity, financial condition, and results of operations.
As
of December 31, 2019, we had an aggregate of $8.7 million of indebtedness, which was secured by substantially all of our assets.
In addition, we may incur additional debt in the future. Our indebtedness could have important consequences on our business. To
the extent new debt and/or new credit sources are added to our existing debt, the related risks for us could intensify. In particular,
it could:
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require
us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing the
availability of our cash flow to fund operating expenditures, capital expenditures, and for other general corporate purposes;
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limit,
among other things, our ability to borrow additional funds and otherwise raise additional capital, and our ability to conduct
acquisitions, joint, ventures or similar arrangements, as a result of our obligations to repay such indebtedness and as a
result of restrictive covenants contained in the agreements governing our indebtedness;
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limit
our flexibility in planning for, or reacting to, changes in our businesses and the industries in which we operate;
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increase
our vulnerability to general adverse economic and industry conditions; and
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place
us at a competitive disadvantage compared to our competitors that have less debt.
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In
addition, the agreements governing our indebtedness contain (and any agreements governing our future indebtedness may contain)
financial and other restrictive covenants which may potentially be subject to factors beyond our control and negatively affect
our ability to comply.
Despite
our right to pay the interest and principal balance of our existing indebtedness by issuing shares of our common stock, we may
be required to repay such indebtedness in cash, if we do not meet certain customary equity conditions (including minimum price
and volume thresholds) or in certain other circumstances. For example, we may be required to repay the outstanding principal balance
and accrued but unpaid interest, along with a premium, upon the occurrence of certain changes of control or an event of default.
We also may be required to repay any future indebtedness incurred by us in cash. In such event, we may not be able to generate
sufficient cash to service our existing indebtedness, or any future indebtedness incurred by us, as cash payments become due.
If
we are unable to make payments as they come due or comply with the restrictions and covenants in our existing indebtedness, or
any other agreements governing our future indebtedness, there could be a default under the terms of such agreements. In such event,
or if we are otherwise in default under such agreements, including pursuant to any cross-default provisions of such agreements,
the lenders could terminate any commitments to lend and/or accelerate the loans and declare all amounts borrowed due and
payable. Furthermore, our existing secured lenders and any future lenders to whom we grant a security interest, could foreclose
on their security interests in our assets, including our intellectual property. If any of those events occur, our assets might
not be sufficient to repay in full all of our outstanding indebtedness and we may be unable to find alternative financing. Even
if we could obtain alternative financing, it may not be on terms we deem favorable or acceptable to us. Additionally, we may not
be able to amend the agreements governing our indebtedness, or obtain needed waivers, on satisfactory terms or without incurring
substantial costs. Failure to maintain existing or secure new financing could have a material adverse effect on our liquidity,
financial position, and/or results of operations.
Our
management and their affiliates control a substantial interest in us and thus may influence certain actions requiring a stockholder
vote.
As
of December 31, 2019, our management and their affiliates collectively own approximately 14% of our issued and outstanding shares
of common stock. Accordingly, these individuals would have considerable influence regarding the outcome of any transaction that
requires stockholder approval. Furthermore, our Board of Directors is and will be divided into three classes, each of which will
generally serve for a term of three years with only one class of directors being elected in each year. As a consequence of our
“staggered” Board of Directors, only a minority of the Board of Directors will be considered for election in any given
year and our initial stockholders, because of their ownership position, will have considerable influence regarding the outcome.
Item
1A Risk Factors - continued
Risks
Associated with Ownership of Our Common Stock - continued
There
can be no assurance that our common stock will continue to trade on the Nasdaq Capital Market or another national securities exchange.
On
October 10, 2019, we were not in compliance with the market value of listed securities (“MVLS”) standard of
the continued listing standards for Nasdaq Capital Market companies. Although on January 10, 2020, the Nasdaq Staff notified
us that we had regained compliance, there can be no assurance that we will be able to continue to meet the MVLS
or any of the other Nasdaq Capital Market listing standards. If we are unable to maintain compliance with the MVLS standard and
all other listing standard, our common stock may no longer be listed on the Nasdaq Capital Market or another national securities
exchange and the liquidity and market price of our common stock may be adversely affected.
A
robust public market for our common stock may not be sustained, which could affect your ability to sell our common stock or depress
the market price of our common stock.
We
are unable to predict whether an active trading market for our common stock will be sustained. If an active market is not sustained
for any reason, it may be difficult for you to sell your securities at the time you wish to sell them, at a price that is attractive
to you, or at all.
Our
stock price may be volatile, and purchasers of our securities could incur substantial losses.
Our
stock price is likely to be volatile. The stock market in general, and the market for life science companies, and medical device
companies in particular, have experienced extreme volatility that has often been unrelated to the operating performance of particular
companies. The market price for our common stock may be influenced by many factors, including the following:
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our
ability to successfully commercialize, and realize revenues from sales of, any products we may develop;
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the
performance, safety and side effects of any products we may develop;
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the
success of competitive products or technologies;
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results
of clinical studies of any products we may develop or those of our competitors;
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regulatory
or legal developments in the U.S. and other countries, especially changes in laws or regulations applicable to any products
we may develop;
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introductions
and announcements of new products by us, our commercialization partners, or our competitors, and the timing of these introductions
or announcements;
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actions
taken by regulatory agencies with respect to our products, clinical studies, manufacturing process or sales and marketing
terms;
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variations
in our financial results or those of companies that are perceived to be similar to us;
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the
success of our efforts to acquire or in-license additional products or other products we may develop;
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developments
concerning our collaborations, including but not limited to those with our sources of manufacturing supply and our commercialization
partners;
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developments
concerning our ability to bring our manufacturing processes to scale in a cost-effective manner;
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announcements
by us or our competitors of significant acquisitions, strategic partnerships, joint ventures or capital commitments;
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developments
or disputes concerning patents or other proprietary rights, including patents, litigation matters and our ability to obtain
patent protection for our products;
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our
ability or inability to raise additional capital and the terms on which we raise it;
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the
recruitment or departure of key personnel;
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changes
in the structure of healthcare payment systems;
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market
conditions in the medical device, pharmaceutical and biotechnology sectors;
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actual
or anticipated changes in earnings estimates or changes in stock market analyst recommendations regarding our common stock,
other comparable companies or our industry generally;
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trading
volume of our common stock;
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sales
of our common stock by us or our stockholders;
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general
economic, industry and market conditions; and
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the
other risks described in this “Risk Factors” section.
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These
broad market and industry factors may seriously harm the market price of our common stock, regardless of our operating performance.
In the past, following periods of volatility in the market, securities class action litigation has often been instituted against
companies. Such litigation, if instituted against us, could result in substantial costs and diversion of management’s attention
and resources, which could materially and adversely affect our business, financial condition, results of operations and growth
prospects.
Item
1A Risk Factors - continued
Risks
Associated with Ownership of Our Common Stock - continued
Our
outstanding warrants and other convertible securities may have an adverse effect on the market price of our common stock.
As
of December 31, 2019, we had outstanding: (i) employee stock options to purchase 5,203,529 shares of our common stock at a weighted
average exercise price of $2.68 per share; (ii) warrants to purchase 17,196,857 shares of our common stock at a weighted average
exercise price of $1.68 per share; (iii) unit purchase options to purchase 53,000 units at an exercise price of $5.50 per unit,
with each unit consisting of one share of our common stock and one warrant, and each warrant entitling the holder to purchase
one share of our common stock at an exercise price of $1.60 per share; (iv) Series B preferred stock convertible into 1,158,209
shares of our common stock; (v) the November 2019 Senior Convertible Notes, which were convertible into 8,750,000
shares of our common stock (assuming the November 2019 Senior Convertible Notes were converted in full on such date
at the initial fixed conversion price of $1.60 per share); and (vi) the December 2018 Senior Convertible Note (as
defined below), which was convertible in to 31,250 shares of our common stock (assuming the December 2018 Senior
Convertible Note was converted in full on such date at the initial fixed conversion price of $1.60 per share). As of December
31, 2019, we also have 2,548,406 shares reserved for issuance, but not subject to outstanding awards, under our long-term incentive
equity plan, and 167,228 shares reserved for issuance under our employee stock purchase plan.
Furthermore,
accrued and unpaid interest and installments of principal under the 2019 Convertible Notes and the 2018 Convertible Notes are
due on bi-monthly payment dates as prescribed therein, and are payable at our option in shares of our common stock, subject to
the satisfaction of customary equity conditions (including minimum price and volume thresholds). The number of shares of common
stock to be issued under these notes may be substantially greater than the estimate set forth in the preceding paragraph, if the
interest and the installments of principal are paid in shares of our common stock, because in such cases the number of shares
issued will be determined based on the then current market price, but in any event not more than fixed conversion price per share
or less than a floor price specified in the notes. We cannot predict the market price of our common stock at any future date,
and therefore, we are unable to accurately forecast or predict the total amount of shares that ultimately may be issued under
these notes. In addition, the number of shares issued under these notes may be substantially greater if we voluntarily lower the
conversion price, which we are permitted to do pursuant to the terms thereof.
The
issuance of these shares will dilute our other equity holders, which could cause the price of our common stock to decline.
We
do not intend to pay any dividends on our common stock at this time.
We
have not paid any cash dividends on our shares of common stock to date. The payment of cash dividends on our common stock in the
future will be dependent upon our revenues and earnings, if any, capital requirements and general financial condition and will
be within the discretion of our Board of Directors. It is the present intention of our Board of Directors to retain all earnings,
if any, for use in our business operations and, accordingly, our Board of Directors does not anticipate declaring any dividends
on our common stock in the foreseeable future. As a result, any gain you will realize on our common stock (including common stock
obtained upon exercise of our warrants) will result solely from the appreciation of such shares.
Item
1A Risk Factors - continued
Risks
Associated with Ownership of Our Common Stock - continued
We
are an “emerging growth company”, and we cannot be certain if the reduced reporting requirements applicable to emerging
growth companies will make our common stock less attractive to investors.
We
are an “emerging growth company,” as defined in the JOBS Act, which was enacted in April 2012. For as long as we continue
to be an emerging growth company, we may take advantage of exemptions from various reporting requirements that are applicable
to other public companies that are not emerging growth companies, including not being required to comply with the auditor attestation
requirements of Section 404 of the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act, reduced disclosure obligations regarding
executive compensation in our periodic reports and proxy statements and exemptions from the requirements of holding a nonbinding
advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. We
could be an emerging growth company for up to five years, although circumstances could cause us to lose that status earlier. We
will remain an emerging growth company until the earlier of (1) the last day of the fiscal year following the fifth anniversary
of the completion of our initial public offering, December 31, 2021, (2) the last day of the fiscal year in which we have
total annual gross revenue of at least $1.0 billion, (3) the date on which we are deemed to be a large accelerated filer, which
means the market value of our common stock that is held by non-affiliates exceeds $700.0 million as of the prior June 30th, and
(4) the date on which we have issued more than $1.0 billion in non-convertible debt securities during the prior three-year period.
We cannot predict if investors will find our common stock less attractive because we may rely on these exemptions. If some investors
find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock
price may suffer or be more volatile.
Under
the JOBS Act, emerging growth companies can delay adopting new or revised accounting standards issued subsequent to the enactment
of the JOBS Act until such time as those standards apply to private companies. We have elected to use the extended transition
period for complying with new or revised accounting standards that have different effective dates for public and private companies
until the earlier of the date we (i) are no longer an emerging growth company or (ii) affirmatively and irrevocably opt out of
the extended transition period under the JOBS Act.
We
incur significant costs as a result of operating as a public company, and our management will be required to devote substantial
time to compliance initiatives.
As
a public company, we incur significant legal, accounting and other expenses. We are subject to the reporting requirements of the
Exchange Act, the other rules and regulations of the Securities and Exchange Commission, or SEC, and the rules and regulations
of Nasdaq or any other national securities exchange on which our securities are then trading. Compliance with the various reporting
and other requirements applicable to public companies requires considerable time and attention of management. For example, the
Sarbanes-Oxley Act and the rules of the SEC and Nasdaq have imposed various requirements on public companies, including requiring
establishment and maintenance of effective disclosure and financial controls. Our management and other personnel devote a substantial
amount of time to these compliance initiatives. These rules and regulations result in significant legal and financial compliance
costs and make some activities more time-consuming and costlier.
The
Sarbanes-Oxley Act requires, among other things, that we maintain effective internal control over financial reporting and disclosure
controls and procedures. In particular, we must perform system and process evaluation and testing of our internal control over
financial reporting to allow management to report on the effectiveness of our internal control over financial reporting, as required
by Section 404 of the Sarbanes-Oxley Act. In addition, we will be required to have our independent registered public accounting
firm attest to the effectiveness of our internal control over financial reporting beginning with our annual report on Form 10-K
following the date on which we are no longer an emerging growth company. Our compliance with Section 404 of the Sarbanes-Oxley
Act requires that we incur substantial accounting expense and expend significant management efforts. We currently do not have
an internal audit group, and as our business expands, we will need to hire additional accounting and financial staff with appropriate
public company experience and technical accounting knowledge. If we are not able to comply with the requirements of Section 404
in a timely manner, or if we or our independent registered public accounting firm identify deficiencies in our internal control
over financial reporting that are deemed to be material weaknesses, the market price of our stock could decline and we could be
subject to sanctions or investigations by the SEC or other regulatory authorities, which would require additional financial and
management resources.
Our
ability to successfully implement our business plan and comply with Section 404 requires us to be able to prepare timely and accurate
financial statements. We expect that we will need to continue to improve existing, and implement new operational and financial
systems, procedures and controls to manage our business effectively. Any delay in the implementation of, or disruption in the
transition to, new or enhanced systems, procedures or controls, may cause our operations to suffer and we may be unable to conclude
that our internal control over financial reporting is effective and to obtain an unqualified report on internal controls from
our auditors if required under Section 404 of the Sarbanes-Oxley Act. This, in turn, could have an adverse impact on trading
prices for our common stock, and could adversely affect our ability to access the capital markets.
We identified a material weakness
in our internal control over financial reporting. If we are unable to remediate the material weakness, or if we experience additional
material weaknesses in the future, our business may be harmed.
Our management is responsible for establishing
and maintaining adequate internal control over financial reporting and for evaluating and reporting on the effectiveness of our
system of internal control. Our internal control over financial reporting is a process designed to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external reporting purposes in
accordance with U.S. GAAP. As a public company, we are required to comply with the Sarbanes-Oxley Act and other rules that govern
public companies. In particular, we are required to certify our compliance with Section 404 of the Sarbanes-Oxley Act, which requires
us to furnish annually a report by management on the effectiveness of our internal control over financial reporting.
Management performed an assessment of the
effectiveness of our internal control over financial reporting as of December 31, 2019 and concluded that our internal control
over financial reporting was not effective as of December 31, 2019 due to the material weakness related to the level of precision
of our control environment. Specifically, we did not maintain a properly designed control environment that identified key control
risk areas with an appropriate level of precision in order to conclude on the operating effectiveness of our disclosure controls
and procedures. We have taken and continue to take remedial steps to improve our internal control over financial reporting. For
further discussion of the material weakness identified and our remedial efforts, see Item 9A.
Remediation efforts place a significant
burden on management and add increased pressure to our financial resources and processes. If we are unable to successfully remediate
our existing material weakness or any additional material weaknesses in our internal control over financial reporting that may
be identified in the future in a timely manner, the accuracy and timing of our financial reporting may be adversely affected;
our liquidity, our access to capital markets, the perceptions of our creditworthiness may be adversely affected; we may be unable
to maintain or regain compliance with applicable securities laws, the listing requirements of the Nasdaq Stock Market; we may
be subject to regulatory investigations and penalties; investors may lose confidence in our financial reporting; our reputation
may be harmed; and our stock price may decline.
Item
1A Risk Factors - continued
Risks
Associated with Ownership of Our Common Stock - continued
If
securities or industry analysts do not publish research, or publish inaccurate or unfavorable research, about our business, our
stock price and trading volume could decline.
The
trading market for our common stock will depend, in part, on the research and reports that securities or industry analysts publish
about us or our business. If any analyst who covers us downgrades our stock or publishes inaccurate or unfavorable research about
our business, our stock price would likely decline. In addition, if our operating results fail to meet the forecast of analysts,
our stock price would likely decline. If one or more of these analysts cease coverage of our company or fail to publish reports
on us regularly, demand for our common stock could decrease, which might cause our stock price and trading volume to decline.
Provisions
in our corporate charter documents and under Delaware law could make an acquisition of us more difficult and may prevent attempts
by our stockholders to replace or remove our current management.
Provisions
in our corporate charter and our bylaws may discourage, delay or prevent a merger, acquisition or other change in control of us
that stockholders may consider favorable, including transactions in which stockholders might otherwise receive a premium for their
shares. These provisions could also limit the price that investors might be willing to pay in the future for shares of our common
stock, thereby depressing the market price of our common stock. In addition, these provisions may frustrate or prevent any attempts
by our stockholders to replace or remove our current management by making it more difficult for stockholders to replace members
of our Board of Directors. Because our Board of Directors is responsible for appointing the members of our management team, these
provisions could in turn affect any attempt by our stockholders to replace current members of our management team. Among others,
these provisions include the following.
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our
Board of Directors is divided into three classes with staggered three-year terms which may delay or prevent a change of our
management or a change in control;
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our
Board of Directors has the right to elect directors to fill a vacancy created by the expansion of our Board of Directors or
the resignation, death or removal of a director, which will prevent stockholders from being able to fill vacancies on our
Board of Directors;
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our
certificate of incorporation prohibits cumulative voting in the election of directors, which limits the ability of minority
stockholders to elect director candidates;
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our
stockholders are required to provide advance notice and additional disclosures in order to nominate individuals for election
to our Board of Directors or to propose matters that can be acted upon at a stockholders’ meeting, which may discourage
or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors
or otherwise attempting to obtain control of our company; and
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our
Board of Directors is able to issue, without stockholder approval, shares of undesignated preferred stock, which makes it
possible for our Board of Directors to issue preferred stock with voting or other rights or preferences that could impede
the success of any attempt to acquire us.
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Moreover,
because we are incorporated in Delaware, we are governed by the provisions of Section 203 of the Delaware General Corporation
Law, which prohibits a person who owns in excess of 15.0% of our outstanding voting stock from merging or combining with us for
a period of three years after the date of the transaction in which the person acquired in excess of 15.0% of our outstanding voting
stock, unless the merger or combination is approved in a prescribed manner.